                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           Nida v. Spurgeon, 2013 IL App (4th) 130136




Appellate Court            MARCIA NIDA, Plaintiff-Appellant, v. MARLENE SPURGEON,
Caption                    Individually and as Administratrix of the Estate of LORENE D. HART,
                           Defendant-Appellee.



District & No.             Fourth District
                           Docket No. 4-13-0136


Filed                      October 30, 2013


Held                       Summary judgment was properly entered for defendant landlord in an
(Note: This syllabus       action for the injuries plaintiff suffered when she was walking on the
constitutes no part of     driveway of the property she had rented from defendant and a piece of the
the opinion of the court   driveway broke and she fell, since plaintiff had been aware of the
but has been prepared      deteriorated condition of the driveway from the time she rented the
by the Reporter of         property, defendant was entitled to presume plaintiff would be cautious
Decisions for the          when she encountered the open and obvious condition, plaintiff did not
convenience of the         suggest how defendant could have guarded against the injury, nor did she
reader.)
                           claim the driveway violated any housing regulation, and an injury-proof
                           driveway could not have been provided, regardless of the material or
                           grade.


Decision Under             Appeal from the Circuit Court of Sangamon County, No. 11-L-194; the
Review                     Hon. Leo Zappa, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Jason B. McGary and Hania Sohail (argued), both of Strong Law Offices,
Appeal                     of Peoria, for appellant.

                           Craig L. Unrath and Natalie D. Thompson (argued), both of Heyl,
                           Royster, Voelker & Allen, of Peoria, for appellee.


Panel                      JUSTICE KNECHT delivered the judgment of the court, with opinion.
                           Presiding Justice Steigmann and Justice Turner concurred in the
                           judgment and opinion.




                                              OPINION

¶1          On August 10, 2011, plaintiff, Marcia Nida, filed a two-count complaint against
        defendant, Marlene Spurgeon, individually and as administratrix of the estate of Lorene D.
        Hart, for injuries suffered at a rental property owned by defendant. In November 2012,
        defendant filed a motion for summary judgment. In February 2013, the trial court granted the
        motion for summary judgment, concluding defendant did not owe a duty of care to plaintiff.
¶2          Plaintiff appeals, arguing the trial court erred in granting defendant’s summary judgment
        motion. Plaintiff contends defendant owes her a duty of care and factual issues exist as to
        whether a dangerous condition was open and obvious and de minimis. We affirm.

¶3                                       I. BACKGROUND
¶4                                     A. Plaintiff’s Complaint
¶5           On August 10, 2011, plaintiff filed a two-count complaint against defendant, individually
        and as administratrix of the estate of Hart, for injuries suffered at a rental property owned by
        defendant and located on Gaule Road in the Village of Rochester. Plaintiff alleged, on
        August 23, 2009, she was a tenant at the property and was walking on the property’s
        driveway when a piece of the driveway broke and she fell, injuring herself. Plaintiff alleged
        defendant was negligent for failing to warn plaintiff about the condition of the driveway,
        failing to repair the driveway, and permitting the driveway to exist in a “state of disrepair.”

¶6                                           B. Discovery
¶7                                     1. Plaintiff’s Deposition
¶8          At her deposition, plaintiff testified she moved into the house on May 15, 2008. When
        she moved in, she performed a walk-through with defendant’s children, Robert Spurgeon and
        Lisa Kaiser. During the walk-through, plaintiff asked about the driveway and Robert “said


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       he was going to patch [it] or replace it.” Plaintiff dealt with Robert and Lisa about the day-to-
       day affairs. Robert “took care of maintenance” at the property and delivered water to the
       cistern. She testified she requested defendant repair the driveway “at least five times” and
       her requests “were always oral.” She testified Robert repaired the air conditioning once but
       did not mention other maintenance requests. On one occasion when Robert delivered water,
       he “bottomed out” and said “he needed to get that driveway fixed or someone’s going to
       really tear up their car.” Plaintiff testified she or another resident mowed the grass and she
       never attempted to “clean up or sweep out any of the broken pieces” in the driveway. A
       garage and a cattle gate were on the property and defendant and her family “were in and out
       on the driveway a lot.” She observed them use the driveway “probably 20 [or] 25 times”
       during the time she lived there. They would use the driveway “when they had to come and
       check on the cows, or when they would switch the cows, or if they needed the garage.” She
       admitted she stopped paying rent in April 2009 and was given an eviction notice in August
       2009.
¶9         On August 23, 2009, she walked down the driveway to the mailbox. The sun was out but
       she did not know what time of day it was. The driveway was made up of “asphalt, old
       asphalt.” She walked in a manner to avoid broken pieces of asphalt, she described this as a
       “zigzag” route. As she was walking back up the driveway she “stepped on the asphalt, the
       piece broke, and [her] ankle snapped.” She fell in the area between a telephone pole beside
       the driveway and the mailbox at the bottom of the driveway. The broken piece of asphalt was
       about the size of a football.

¶ 10                                 2. Defendant’s Deposition
¶ 11       Defendant testified her mother, Lorene D. Hart, had lived in the house for 70 years before
       plaintiff moved in. Plaintiff was the first renter at the house. The driveway was never paved
       and when defendant’s father was alive he “would just put bucket tar and sweep it down the
       driveway” and then “put pea gravel on top of it.” It had been more than 10 years since this
       had been done. Defendant’s adult children, Robert and Lisa, were responsible for overseeing
       the property. Defendant retained the “last say” but most decisions were handled by them.
       They would have been able to take care of resurfacing the driveway without her approval.
       She stored a tractor and miscellaneous items in a garage on the property.

¶ 12                               3. Lisa Kaiser’s Deposition
¶ 13       Lisa testified she is defendant’s eldest daughter and assisted in managing the rental
       property. The driveway had been “broke up” for years and she described it as being loose
       gravel next to the road and then “asphalt crumbles up through the driveway.” She never
       considered the pieces of broken asphalt to be hazardous or a danger. She went on to the
       property with her son to repair a piece of soffit, and she “might go into the garage to get stuff
       because we had stuff out there that was left from my grandmother’s house.” She did not
       know whether plaintiff requested Robert to repair the driveway and she had “never heard him
       say that the driveway had to be repaired because of [plaintiff’s] request.”


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¶ 14                       C. Defendant’s Motion for Summary Judgment
¶ 15        In November 2012, defendant filed a motion for summary judgment. Defendant argued
       (1) she did not owe a duty of care because plaintiff fell in a public right-of-way, (2) the
       driveway condition was open and obvious, and (3) “plaintiff has failed to produce any
       evidence that the broken piece of asphalt is anything other than ‘de minimus.’ ” Defendant
       attached an affidavit from Kaiser, a survey plat of the property, and, later, a copy of the lease.
¶ 16        Kaiser’s affidavit states (1) she is “familiar with the plat of the subject property”; (2) she
       “personally performed a measurement in this case of the distance between Gaule Road and
       the location of the utility pole on the property”; (3) “[t]the distance between the utility pole
       and the mailbox in this case is 8.5 feet”; and (4) “[c]omparing that distance with the distance
       on the plat of survey of the subject property indicates that the area where plaintiff fell was
       within the right-of-way owned by Rochester Township in this case. This is because the right-
       of-way extends 40 feet north of Gaule Road which would include the area encompassed by
       the utility pole. Given that the plaintiff allegedly fell between the utility pole and the mailbox
       on Gaule Road, it indicates that plaintiff would have fallen on the right-of-way property
       owned by Rochester Township.”
¶ 17        The lease provides for monthly rent of $550. It does not include a provision stating who
       is responsible for repairs but states the security deposit would be refunded if, among other
       things, “an inspection shows no damage beyond ordinary wear and tear.”

¶ 18                                 D. The Trial Court’s Order
¶ 19       In February 2013, the trial court issued its written order and granted defendant’s summary
       judgment motion. The court found the case presented no question of material fact the
       driveway’s defect was concealed from plaintiff and no evidence defendant “took any efforts
       to control or make any repairs on the subject driveway prior to the fall.” It found the
       “evidence is undisputed in this case that the area where plaintiff fell was on a public right-of-
       way.” It concluded as a matter of law (1) the condition was open and obvious, and (2) the de
       minimis rule applies based on the fact it was a rural driveway and “the speculative nature of
       plaintiff’s testimony about the size of the alleged defect.”
¶ 20       This appeal followed.

¶ 21                                        II. ANALYSIS
¶ 22       Plaintiff appeals, arguing the trial court erred in granting defendant’s motion for summary
       judgment. Plaintiff argues defendant owed her a duty of care because (1) “a private
       landowner owes a duty of care to provide a reasonably safe means of ingress and egress from
       their property,” (2) defendant (a) made a promise at the time of the lease to repair the
       condition of the driveway and (b) voluntarily undertook to render a service to repair the
       driveway, (3) the condition was not open and obvious, and (4) the de minimis rule does not
       apply. Defendant argues she did not owe plaintiff a duty because (1) where plaintiff fell was
       located in a public right-of-way, (2) she had no obligation to repair or maintain the driveway,
       (3) the condition of the driveway was obvious and existed at the time of the lease, and (4)


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       plaintiff “failed to produce any evidence that the broken piece of asphalt was anything other
       than de minimis.”
¶ 23       We consider the parties’ specific arguments as interrelated issues affecting a landlord’s
       duty of care to a tenant. We address them accordingly and conclude defendant did not owe
       a duty of care to plaintiff.

¶ 24                                      A. Standard of Review
¶ 25       Section 2-1005 of the Code of Civil Procedure provides summary judgment shall be
       granted “if the pleadings, depositions, and admissions on file, together with the affidavits,
       if any, show that there is no genuine issue as to any material fact and that the moving party
       is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005 (West 2012). “The purpose
       of summary judgment is not to try a question of fact but simply to determine if one exists.”
       Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280, 864 N.E.2d 227, 232 (2007). “In
       determining whether a genuine issue as to any material fact exists, a court must construe the
       pleadings, depositions, admissions, and affidavits strictly against the movant and liberally
       in favor of the opponent.” Williams v. Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d 1, 9
       (2008). “If the undisputed material facts could lead reasonable observers to divergent
       inferences, or where there is a dispute as to a material fact, summary judgment should be
       denied and the issue decided by the trier of fact.” Forsythe, 224 Ill. 2d at 280, 864 N.E.2d at
       232. “If the plaintiff fails to establish any element of the cause of action, summary judgment
       for the defendant is proper.” Williams, 228 Ill. 2d at 417, 888 N.E.2d at 9. A trial court’s
       grant of summary judgment is reviewed de novo. Id.

¶ 26                            B. Elements of Negligence and Duty
¶ 27       To succeed in an action for negligence, the plaintiff must establish the defendant owed
       a duty to the plaintiff, the defendant breached his or her duty, and the breach proximately
       caused injury to the plaintiff. Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, ¶ 22,
       980 N.E.2d 58. “In any negligence action, the court must first determine as a matter of law
       whether the defendant owed a duty to the plaintiff.” Id. ¶ 34, 980 N.E.2d 58. In determinating
       whether a duty of care exists, Illinois courts typically consider: “(1) the reasonable
       foreseeability of injury; (2) the likelihood of injury; (3) the magnitude of the burden of
       guarding against injury; and (4) the consequences of placing that burden on the defendant.”
       Wilfong v. L.J. Dodd Construction, 401 Ill. App. 3d 1044, 1051-52, 930 N.E.2d 511, 519
       (2010); LaFever v. Kemlite Co., 185 Ill. 2d 380, 389, 706 N.E.2d 441, 446 (1998). “Absent
       a duty, ‘no recovery by the plaintiff is possible as a matter of law.’ ” Choate, 2012 IL
       112948, ¶ 22, 980 N.E.2d 58 (quoting Vesey v. Chicago Housing Authority, 145 Ill. 2d 404,
       411, 583 N.E.2d 538, 541 (1991)).

¶ 28                          C. A Landlord’s Duty of Care, Generally
¶ 29       It is well settled in Illinois a landlord is not liable to a tenant for injuries caused by a
       defective or dangerous condition, existing when the lessee took possession, on premises


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       leased to a tenant, and under the tenant’s control. Rowe v. State Bank of Lombard, 125 Ill.
       2d 203, 220-21, 531 N.E.2d 1358, 1366 (1988). This rule is based on the principle the lease
       transfers the lessor’s control over the property to the lessee. Id. at 221, 531 N.E.2d at 1366;
       Wright v. Mr. Quick, Inc., 109 Ill. 2d 236, 238, 486 N.E.2d 908, 909 (1985). There are
       several exceptions to this rule, and a landlord may be liable where “ ‘(1) a latent defect
       existed at the time of the leasing which lessor should have known about; (2) [there is] a
       fraudulent concealment by a landlord of a dangerous condition; (3) the defect causing the
       harm amounts to a nuisance; (4) the landlord makes a promise to repair a condition at the
       time of leasing; *** (5) the landlord violates a statutory requirement of which tenant is in the
       class designed to be protected and the resulting harm is reasonably foreseeable’ ” (Bybee v.
       O’Hagen, 243 Ill. App. 3d 49, 51, 612 N.E.2d 99, 101 (1993) (quoting Moreno v. Balmoral
       Racing Club, Inc., 217 Ill. App. 3d 365, 367, 577 N.E.2d 179, 180-81 (1991))); or “ ‘(6) the
       landlord voluntarily undertakes to render a service’ ” (Gilley v. Kiddel, 372 Ill. App. 3d 271,
       275, 865 N.E.2d 262, 267 (2007) (quoting Klitzka v. Hellios, 348 Ill. App. 3d 594, 598, 810
       N.E.2d 252, 256 (2004))). If the landlord retains control of the leased premises the general
       rule does not apply, and the landlord “has the duty, as the party in control, to use ordinary
       care in maintaining that part of the premises in a reasonably safe condition.” Rowe, 125 Ill.
       2d at 220, 531 N.E.2d at 1366.

¶ 30                           D. Defendant’s Duty of Care to Plaintiff
¶ 31                        1. Plaintiff’s “Ingress and Egress” Argument
¶ 32        Plaintiff relies on Cooley v. Makse, 46 Ill. App. 2d 25, 196 N.E.2d 396 (1964), and
       McDonald v. Frontier Lanes, Inc., 1 Ill. App. 3d 345, 272 N.E.2d 369 (1971), in support of
       her argument defendant, as a landowner, owed a duty to provide a reasonably safe means of
       ingress and egress from the property. In Cooley, the plaintiff fell over some loose bricks in
       a walkway leading from the defendant tavern’s front door to a city sidewalk. Cooley, 46 Ill.
       App. 2d at 26, 196 N.E.2d at 396. The Second District stated “the duty of the defendants to
       use due care not to negligently injure invitees upon their premises carries with it a corollary
       duty to get such invitees safely on or off their premises.” Id. at 30, 196 N.E.2d at 398. Thus,
       the tavern “[h]aving prescribed the route to [its] invitees for ingress and egress to and from
       [its] building,” owed a duty to warn or repair a known, dangerous condition. Id. at 31, 196
       N.E.2d at 398. In McDonald, the plaintiff exited the defendant bowling alley and walked
       across the parking lot and approached her car, which was parked on the street. McDonald,
       1 Ill. App. 3d at 350, 272 N.E.2d at 372. On crossing the sidewalk, the plaintiff stepped onto
       a grassy parkway and into a hole. Id. The Second District cited Cooley and agreed the duty
       to provide a reasonably safe means of ingress and egress can extend “beyond the precise
       boundaries” of the premises owned or controlled by the inviter. Id. at 351, 272 N.E.2d at 372.
       The appellate court concluded the duty “defendant owed to plaintiff was to exercise the care
       of a prudent man to provide reasonably safe means of egress from its premises and to give
       its invitee adequate warning of those dangers known to defendant which were not apparent.”
       Id. at 353, 272 N.E.2d at 374.
¶ 33        Plaintiff asks too much from Cooley and McDonald. These cases framed their holdings


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       as an extension of the duty owed to an invitee to provide a reasonably safe premises and
       concerned an owner’s or occupier’s appropriation of an adjacent public sidewalk for his or
       her own use. Our case is quickly distinguishable; plaintiff was a tenant, not a visitor to a
       business establishment, and the alleged injury occurred on a driveway, not a public sidewalk.
       Further, plaintiff focuses on the word “landowner” and concludes defendant, as a landowner,
       must owe a duty to provide a reasonably safe means of ingress and egress. However, the rule
       not only applies to a “landowner,” but also the party in possession of the premises. Stedman
       v. Spiros, 23 Ill. App. 2d 69, 81, 161 N.E.2d 590, 596 (1959). In other words, the rule
       plaintiff relies on states a party in possession has a duty to provide a reasonably safe means
       of ingress and egress. By operation of the lease, plaintiff, as the lessee, is the party in
       possession. This conflict may explain why plaintiff has not provided a single case extending
       Cooley or applying this rule to impose liability on a landlord for injuries sustained by a tenant
       on or about the leased premises. We decline plaintiff’s invitation to do so here.

¶ 34                           2. Defendant’s “Right-of-Way” Argument
¶ 35       In her summary judgment motion, defendant’s main argument was she did not owe any
       duty to plaintiff because the fall occurred in a public right-of-way. Before this court,
       defendant argues “it is clear that [she] did not own the property where [plaintiff] allegedly
       fell” and “the evidence contradicts [the] bald conclusion” plaintiff fell in a private driveway.
       Defendant relies on Kaiser’s affidavit and the survey plats for her contention plaintiff fell in
       a right-of-way owned by the Rochester Township. She relies on Nicholson v. City of
       Danville, 147 Ill. App. 3d 682, 498 N.E.2d 273 (1986), and Gilmore v. Powers, 403 Ill. App.
       3d 930, 934 N.E.2d 564 (2010), in support of her argument she owes no duty based on where
       plaintiff fell. Defendant’s argument is unpersuasive.
¶ 36       First, our review of Kaiser’s affidavit shows several deficiencies. The affidavit provides
       the distance between the utility pole and the mailbox, but does not provide (1) the direction
       of the measurement, (2) the distance between the utility pole and the road, or (3) the distance
       between the mailbox and the road. This information is necessary to determine the distance
       the utility pole is from the road and whether such area is within the right-of-way. (We decline
       to consider the diagram drawn by defendant’s attorney at plaintiff’s deposition to determine
       the direction of the utility pole. At the deposition, defendant’s attorney agreed the diagram
       was not to scale and it was “not going to depict the exact graphic location on the driveway
       where she fell.”) Further, the affidavit states “the right-of-way extends 40 feet north of Gaule
       Road” but the survey plat appears to reflect the 40-foot measurement extends from the
       middle of the road and not the edge of the road, as Kaiser’s affidavit implies. This leads to
       a general question of whether Kaiser is competent to testify about a survey plat where the
       affidavit does not state she has any experience or training in surveying. See Ill. S. Ct. R.
       191(a) (eff. Jan. 4, 2013) (affidavit “shall affirmatively show that the affiant, if sworn as a
       witness, can testify competently thereto”). Moreover, the affidavit contains the conclusion
       plaintiff fell in the right-of-way, and without the distance between the utility pole and road
       there is no basis for this conclusion. See Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013) (affidavit
       “shall not consist of conclusions but of facts admissible in evidence”). In short, the affidavit
       provides little factual evidence other than the distance between the pole and the mailbox, and

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       this is not enough to conclusively resolve where plaintiff fell.
¶ 37       Second, defendant’s reliance on Nicholson and Gilmore is misplaced. In Nicholson, the
       plaintiff fell while walking on a sidewalk adjacent to a drive-in theater and public highway
       in Danville. Nicholson, 147 Ill. App. 3d at 684, 498 N.E.2d at 273. The parties provided
       evidence from Danville’s city engineer, commissioner of streets and public works, two
       engineers from the Illinois Department of Transportation, and an affidavit from a surveyor
       showing the sidewalk was within the highway’s right-of-way and the state maintained the
       area next to the sidewalk. Id. at 685-87, 498 N.E.2d at 274-76. This court affirmed summary
       judgment in favor of the theater’s owner because, while the evidence showed he swept the
       sidewalk while the theater was operating, he “had discontinued his voluntarily assumed duty
       prior to the time of [the plaintiff’s] accident.” Id. at 691, 498 N.E.2d at 278. In Gilmore, a
       mover was traversing a walkway which crossed over a public parkway, a grassy area between
       the street and sidewalk, when she fell. Gilmore, 403 Ill. App. 3d at 931, 934 N.E.2d at 565.
       The defendants cut the grass and raked leaves in the parkway, but argued the area was owned
       by the city, and they assumed no duty to maintain the walkway. Id. at 931-32, 934 N.E.2d
       at 566. The First District reiterated “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.”
       Id. at 933, 934 N.E.2d at 567. But “the appellate court has found that no duty to maintain the
       city-owned property exists where the landowner merely maintains the property by mowing
       grass or shoveling and salting it in the winter.” Id. at 933-34, 934 N.E.2d at 568. The First
       District went on to note its and the Second District’s disagreement with this court’s decision
       in Smith v. Rengel, 97 Ill. App. 3d 204, 422 N.E.2d 1146 (1981), “which holds that a
       landowner assumes control over city-owned property merely by mowing it and shoveling it.”
       Gilmore, 403 Ill. App. 3d at 935-36, 934 N.E.2d at 569. See Burke v. Grillo, 227 Ill. App.
       3d 9, 17, 590 N.E.2d 964, 969 (1992) (Second District); Evans v. Koshgarian, 234 Ill. App.
       3d 922, 925, 602 N.E.2d 27, 29 (1992) (First District).
¶ 38       In our case, there are several distinctions with Nicholson and Gilmore: (1) Neither case
       addressed the duty of care owed by a landlord to a tenant for injuries sustained on the
       landlord’s property or adjacent public property. (2) Neither case holds a private landowner
       has no responsibility for publicly owned areas, as defendant suggests, but rather a private
       landowner may be liable if the landowner controls the publicly owned area. (3) The evidence
       in Nicholson included testimony from public officials and surveyors with knowledge about
       the sidewalk’s location in a right-of-way and who was responsible for maintaining the area,
       and in Gilmore it was undisputed the accident occurred on a publicly owned parkway. As
       discussed above, Kaiser’s affidavit is insufficient to determine where the fall occurred and
       whether this was in a right-of-way. (4) The falls in Nicholson and Gilmore occurred on a
       sidewalk, not a rural driveway. (5) There is no evidence the township maintained the
       driveway or any member of the general public used the driveway. Rather, in the light most
       favorable to plaintiff, the evidence reflects the driveway was used exclusively to access
       defendant’s private property and was built for such purpose. In short, defendant’s position
       she has no duty based on the asserted fact the driveway crosses over a public right-of-way
       is not supported; rather, Nicholson and Gilmore support the position defendant might have
       a duty, even if the driveway crosses a public right-of-way.

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¶ 39                    3. Does the General Rule Bar Plaintiff’s Claim?
¶ 40       We have rejected plaintiff’s attempt to expand a landlord’s duty to include a duty to
       reasonably maintain a safe means of ingress and egress and defendant’s argument she owes
       no duty because the driveway crosses a public right-of-way. We return to the general rule a
       landlord is not liable for injuries caused by a defective or dangerous condition on the
       premises leased to and under the tenant’s control and whether an exception applies.

¶ 41                                   a. Defendant’s Control
¶ 42       Plaintiff contends defendant controlled the driveway because (1) she “altered not only
       the physical material comprising the driveway, but the grade of the driveway itself”; and (2)
       defendant, or her agents, made weekly deliveries of water to the rental house’s cistern. We
       note plaintiff testified defendant, or her family, used the driveway approximately 20 to 25
       times to access the property and a garage; defendant and Kaiser both testified a garage was
       used for storage; and Kaiser testified she went onto the property to access this garage.
       Plaintiff does not argue this shows defendant retained control and we need not consider
       arguments not made.
¶ 43       Here, the lease contained no provision stating defendant retained control of or restricted
       plaintiff’s use and enjoyment of the driveway. Whether defendant made changes to the
       driveway after plaintiff moved off the property is distinct from whether she controlled the
       driveway when plaintiff lived there. See Herzog v. Lexington Township, 167 Ill. 2d 288, 300-
       01, 657 N.E.2d 926, 932 (1995) (evidence of postaccident remedial measures is not
       admissible to prove prior negligence but may be admissible to prove ownership or control
       of property). Defendant’s weekly deliveries of water for use in the cistern shows defendant
       used the driveway for plaintiff’s benefit–to ensure plaintiff had water–not that she maintained
       control over the driveway. In other words, by operation of the lease, defendant was no longer
       in control of the leased premises and no evidence indicates defendant retained control of the
       driveway. The general liability rule applies.

¶ 44                              b. Exceptions to the General Rule
¶ 45        Plaintiff contends two exceptions apply as defendant, or her agents, (1) made a promise
       at the time of leasing to repair the driveway and (2) voluntarily undertook to render a service
       to repair the driveway. Plaintiff does not indicate whether the promise to repair was before
       or after she signed the lease. Defendant argues any promise to repair (1) made prior to or
       contemporaneous with the lease and not included in the lease would be inadmissible and (2)
       made after the lease would be unenforceable because it was without consideration.
¶ 46        Generally, a landlord is not required to make any repairs to the leased property unless he
       or she agrees to do so by the terms of some express covenant or agreement. Garcia v.
       Jiminez, 184 Ill. App. 3d 107, 113, 539 N.E.2d 1356, 1359 (1989). However, a tenant’s
       covenant to keep the premises in repair covers ordinary repairs and not “ ‘renewals and
       replacements which would last a lifetime.’ ” Quincy Mall, Inc. v. Kerasotes Showplace


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       Theatres, LLC, 388 Ill. App. 3d 820, 824, 903 N.E.2d 887, 890 (2009) (quoting Sandelman
       v. Buckeye Realty, Inc., 216 Ill. App. 3d 226, 230, 576 N.E.2d 1038, 1040 (1991)).
¶ 47        The lease is silent about repairs to the property and does not contain a provision stating
       defendant promised to repair the driveway. In her deposition, plaintiff testified (1) she did
       a walk-through of the property before moving in and Robert told her “he was going to patch
       [the driveway] or replace it,” (2) she orally requested the driveway be replaced “at least five
       times,” (3) she heard Robert say “somebody’s car was going to get tore up” on the driveway,
       and (4) Robert repaired the air conditioning. Considering the driveway’s condition at the time
       of leasing, the expense, and the permanence of a driveway repair, such a repair would not be
       something a residential tenant would be expected to repair. But no evidence suggests
       defendant began a repair to the driveway before plaintiff’s alleged injury, and we can quickly
       dismiss plaintiff’s voluntary undertaking argument. Defendant’s contention the parol
       evidence rule would bar introduction of the promise assumes a promise to repair is contrary
       to the lease, but here the lease does not contain a repair provision and the parties’ deposition
       testimony reflected defendant, or her children, performed repairs to the property during
       plaintiff’s tenancy. See Hurt v. Pershing Mobile Home Sales, Inc., 83 Ill. App. 3d 724, 726,
       404 N.E.2d 842, 843 (1980) (oral promise “directly contrary to the terms of the lease”
       unenforceable as a matter of substantive law because of the parol evidence rule); Midway
       Park Saver v. Sarco Putty Co., 2012 IL App (1st) 110849, ¶ 22, 976 N.E.2d 1063 (parol or
       extrinsic evidence will not be admitted to vary or add to the terms of the contract where the
       terms of a contract are clear). Defendant is correct the promise would not be binding without
       consideration, but plaintiff’s promise to pay rent could satisfy as consideration if the promise
       was made before the lease. See McInerney v. Charter Golf, Inc., 176 Ill. 2d 482, 487, 680
       N.E.2d 1347, 1350 (1997) (defining “consideration”). In short, in the light most favorable
       to plaintiff we must assume such a promise was made.

¶ 48                        4. Was the Condition “Open and Obvious”?
¶ 49       Plaintiff contends “it is clear that the nature of the piece of asphalt that broke when [she]
       stepped onto it” was not open and obvious as a matter of law. She posits factual issues exist
       whether (1) the defective condition was “apparent” and (2) the condition and risk would be
       recognized by a reasonable person. Plaintiff’s argument distinguishes between the “visibly
       unbroken, apparently safe piece of asphalt” and the driveway as a whole. This is
       unpersuasive.
¶ 50       The open-and-obvious doctrine is an exception to the general duty a landowner or
       occupier owes to invitees. Olson v. Williams All Seasons Co., 2012 IL App (2d) 110818,
       ¶ 42, 974 N.E.2d 914; see Ward v. K mart Corp., 136 Ill. 2d 132, 150-51, 554 N.E.2d 223,
       231-32 (1990). It “plays a large role in whether a duty exists because it relates to the issues
       of foreseeability and likelihood of injury.” Wilfong, 401 Ill. App. 3d at 1052, 930 N.E.2d at
       520; see also Buerkett v. Illinois Power Co., 384 Ill. App. 3d 418, 422, 893 N.E.2d 702, 709
       (2008) (“it is not foreseeable that an invitee will be injured when the condition is obvious or
       known”). “A condition is open and obvious where a reasonable person in the plaintiff’s
       position, exercising ordinary perception, intelligence, and judgment, would recognize both


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       the condition and the risk involved.” Olson, 2012 IL App (2d) 110818, ¶ 42, 974 N.E.2d 914.
       Known conditions are treated as obvious conditions and “[a] condition is ‘known’ where the
       plaintiff has ‘ “not only knowledge of the existence of the condition or activity itself, but also
       appreciation of the danger it involves.” ’ ” Belluomini v. Stratford Green Condominium
       Ass’n, 346 Ill. App. 3d 687, 694, 805 N.E.2d 701, 707 (2004) (quoting Deibert v. Bauer
       Brothers Construction Co., 141 Ill. 2d 430, 435, 566 N.E.2d 239, 241 (1990), quoting
       Restatement (Second) of Torts § 343A cmt. b, at 219 (1965)). “Where there is no dispute
       about the physical nature of the condition, whether a danger is open and obvious is a question
       of law.” Choate, 2012 IL 112948, ¶ 34, 980 N.E.2d 58.
¶ 51       In Wilfong, the plaintiff was walking to a construction site and had to step in and out of
       ruts made by vehicle tires. Wilfong, 401 Ill. App. 3d at 1047, 930 N.E.2d at 516. He stepped
       out of one rut into another rut which gave way, and he fell. Id. at 1048, 930 N.E.2d at 516.
       The appellate court rejected the plaintiff’s contention neither he nor any reasonable person
       could know “the particular rut he fell in would collapse.” Id. at 1053, 930 N.E.2d at 521. The
       Second District framed the question as “whether a reasonable person would anticipate the
       danger of crossing over the ruts” and concluded a reasonable person would have “realize[d]
       that walking across the ruts on the site would present the danger of a rut collapsing or of
       tripping or otherwise falling.” Id. at 1054, 930 N.E.2d at 521.
¶ 52       Our question is not whether a reasonable person would anticipate the danger of stepping
       on a single, unbroken piece of asphalt, as plaintiff asserts, but whether a reasonable person
       would anticipate the danger of walking on a visibly broken driveway. The physical condition
       of the driveway was described as having an incline, being constructed primarily of asphalt
       with broken pieces of asphalt and gravel, and having not been repaired for many years. Taken
       in the light most favorable to plaintiff, we assume the driveway was dangerous. Plaintiff
       testified at her deposition she was aware of the driveway’s condition when she moved to the
       property in May 2008, she made five requests for the driveway to be repaired, and she used
       a “zigzag” route up and down the driveway to avoid the broken pieces. Plaintiff, by her own
       testimony, knew about the driveway’s condition and proceeded to use it. This is not a case
       where the condition had never been seen before or was hidden, and plaintiff does not assert
       any exception to the open-and-obvious doctrine applies. See Buchaklian v. Lake County
       Family Young Men’s Christian Ass’n, 314 Ill. App. 3d 195, 202, 732 N.E.2d 596, 601 (2000)
       (plaintiff had not previously seen elevation difference in locker room floor mat); Olson, 2012
       IL App (2d) 110818, ¶ 43, 974 N.E.2d 914 (concluding fact issue existed where testimony
       varied about visibility of drop-off in warehouse floor); Wilfong, 401 Ill. App. 3d at 1054, 930
       N.E.2d at 521 (discussing the “distraction” and “deliberate encounter” exceptions). It was
       open and obvious to plaintiff the whole driveway was in poor condition. Plaintiff was under
       the same obligation imposed on any person traversing the driveway to use ordinary
       perception, intelligence, and reasonable care for her own safety. Such a person would
       understand the risks associated with walking on an asphalt driveway with an incline, observe
       broken pieces of asphalt as an indication the driveway may continue to deteriorate and give
       way, resulting in a fall, and select an alternate route or means of conveyance if the driveway
       was not suitable for pedestrian use.


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¶ 53                     5. Defendant Did Not Owe Plaintiff a Duty of Care
¶ 54       We return to our overarching duty analysis. Defendant, or her children, may have
       promised to repair the driveway, but it is undisputed plaintiff was aware of the driveway’s
       condition and she continued to walk on it. Defendant could not have foreseen plaintiff would
       injure herself and was entitled to presume plaintiff would exercise caution when
       encountering an open and obvious condition. Plaintiff does not offer how defendant could
       have guarded against this injury. Plaintiff did not assert the driveway violated any applicable
       local, state, or federal housing regulation–this being an exception to the general landlord-
       liability rule. Defendant could not have provided an injury-proof driveway regardless of the
       material or grade. We decline the invitation to require her to provide such a driveway in a
       rural setting. We conclude defendant did not owe a duty to plaintiff.

¶ 55                                   III. CONCLUSION
¶ 56      We affirm the trial court’s judgment.

¶ 57      Affirmed.




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