                       Illinois Official Reports

                               Appellate Court



                   Caracci v. Patel, 2015 IL App (1st) 133897



Appellate Court   JUDY CARACCI, Plaintiff-Appellant, v. NATHU J. PATEL,
Caption           ISHWAR D. DHIMAR and AMIT N. PATEL, Defendants-Appellees.



District & No.    First District, Third Division
                  Docket No. 1-13-3897



Filed             April 29, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 10-L-8766; the
Review            Hon. Kathy M. Flanagan, Judge, presiding.



Judgment          Affirmed.



Counsel on        Paul W. Grauer & Associates, of Schaumburg (Edward Adam Czapla
Appeal            and Paul W. Grauer, of counsel), for appellant.

                  Bruce Farrel Dorn & Associates, of Chicago (Ellen J. O’Rourke and
                  Kenneth E. Klimczak, of counsel), for appellees.



Panel             JUSTICE MASON delivered the judgment of the court, with opinion.
                  Presiding Justice Pucinski and Justice Lavin concurred in the
                  judgment and opinion.
                                             OPINION

¶1        Plaintiff-appellant Judy Caracci filed a complaint against defendants-appellees Nathu J.
     Patel, Ishwar D. Dhimar and Amit N. Patel (collectively, defendants), seeking damages for
     injuries she sustained when she tripped and fell in a shopping center parking lot. The circuit
     court entered summary judgment in favor of defendants. On appeal, Caracci contends that the
     trial court erred in granting summary judgment because (1) defendants appropriated the
     roadway where Caracci fell, (2) defendants assumed a duty to maintain and repair the roadway,
     (3) defendants breached their duty to provide a reasonably safe means of ingress and egress to
     the stores in the property they owned, and (4) defendants breached their contractual duty to
     maintain the roadway. Caracci further contends that the trial court erred in denying her motion
     to strike defendants’ amended answer. Finding no merit to Caracci’s arguments, we affirm the
     judgment of the circuit court of Cook County.

¶2                                         BACKGROUND
¶3       On August 2, 2008, Caracci tripped and fell in a pothole on her way to one of the retail
     stores in the Grand Plaza strip mall in Franklin Park, Illinois. The strip mall is owned by
     defendants and is part of a shopping center complex that also included a Jewel grocery store
     and a Kmart retail store at the time of Caracci’s fall. Caracci parked her car in a parking area
     that was across a common roadway from the strip mall. While crossing the roadway, she
     stepped into a hole and fell, sustaining injuries to her right shoulder.
¶4       On July 20, 2010, Caracci filed a negligence action against defendants and one of the retail
     stores in the strip mall, seeking $50,000 in damages. The retail store’s motion for summary
     judgment was granted. Defendants filed a third-party complaint against AVG Partners I, LLC
     (AVG), the owner of the parcel where the Kmart store was located, and Kmart Corporation.
     Kmart filed a counterclaim against AVG.
¶5       On the plat of survey, the parcel owned by SuperValu, Inc., where Jewel is located is
     identified as Lot 1, the parcel owned by AVG that was leased to Kmart is Lot 4, and the parcel
     containing the strip mall is Lot 5. A covered walkway runs along the eastern edge of the strip
     mall and marks the eastern boundary of Lot 5. A roadway runs along the eastern edge of Lot 5,
     adjacent to the walkway. The northern portion of this roadway is on Lot 1, while the southern
     portion is on Lot 4. The pothole where Caracci fell was located in the portion of the roadway
     that is on Lot 4, the parcel owned by AVG.
¶6       Defendants had a maintenance agreement with SuperValu under which they were required
     to contribute 22.5% to the cost of maintaining SuperValu’s parking lot. In exchange,
     SuperValu granted defendants an easement allowing strip mall patrons to park in the Jewel
     parking lot. Defendants did not have any maintenance agreement with AVG, nor did AVG
     grant any easement specifically to the owners of Lot 5. Instead, AVG granted a 33-foot
     easement on the portion of the roadway that was on Lot 4 for ingress and egress for the general
     public and utilities. Under the terms of the lease between AVG and Kmart, AVG was required
     to “maintain all driveways, sidewalks, street and parking areas *** in a safe, sightly and
     serviceable condition, free of chuck holes, fissures and cracks.”
¶7       The first amended complaint filed September 30, 2010, alleged that defendants “undertook
     the upkeep and maintenance” of the roadway and parking area located in front of the strip mall


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       stores. The complaint further alleged that defendants should have known of the dangerous
       pothole in the roadway, owed a duty to Caracci to maintain the roadway, and were responsible
       for providing necessary warnings to pedestrians of the dangerous condition because the
       roadway was the means of ingress and egress to the stores in the strip mall from the parking
       area.
¶8          In the original answer to the complaint filed on December 1, 2010, defendants admitted
       that they owned the strip mall and “owned, operated, managed and maintained the parking area
       for the subject premises.” In their amended answer to the first amended complaint filed on May
       14, 2012, defendants maintained that they owned the strip mall and certain parking areas
       associated with the strip mall that were located on Lot 5, but specifically denied ownership of
       the common roadway and parking area located on Lot 4.
¶9          Caracci filed a motion to strike defendants’ amended answer, arguing that the original
       answer constituted a judicial admission of ownership that was binding. The circuit court
       denied the motion on June 28, 2012, on two separate grounds. First, the amended answer was
       not verified and, therefore, did not have the effect of a judicial admission. Second, in the
       original answer defendants simply admitted that they were the owners of the strip mall and the
       parking area for the subject premises. In the amended answer, they still admitted to ownership
       of the strip mall and surrounding area, but clearly delineated the specific boundaries of their
       ownership and control.
¶ 10        In his deposition, Nathu Patel testified that defendants maintained the area surrounding the
       strip mall, including the roadway and the parking area immediately across from the strip mall.
       This maintenance consisted primarily of sweeping, clearing trash and plowing snow.
       Defendants repaved the area behind the strip mall in 2005, an area that was used by the strip
       mall tenants and not the general public, and the areas to the north and south of the strip mall but
       never repaved the roadway that ran along the eastern edge of the mall. Defendants also did not
       repair the pothole in which Caracci fell. There were no signs restricting parking and patrons of
       the strip mall were free to park in the angled spots across the roadway from the strip mall or
       anywhere in the Kmart and Jewel parking lots.
¶ 11        The record includes a copy of a permit issued on August 19, 2008, by the village of
       Franklin Park to defendants for patching deteriorated asphalt and potholes. The record also
       includes a copy of a contract between a paving service and defendants dated August 14, 2008,
       for the patching of deteriorated asphalt and potholes in an unspecified parking lot. There is
       nothing in the record to indicate what parking lot or area the permit and contract covered, and
       Nathu Patel was not asked about either one during his deposition.
¶ 12        On July 8, 2013, defendants filed a motion for summary judgment on the ground that the
       fall did not occur on property owned or maintained by defendants but on property owned and
       maintained by AVG. In response to the motion for summary judgment, Caracci filed the
       affidavit of a licensed architect, John Van Ostrand. Van Ostrand averred, inter alia, that
       defendants were in possession of and had appropriated the roadway, had voluntarily
       undertaken a duty to maintain it, created the defective condition, failed to provide a safe means
       of ingress and egress to the strip mall, and failed to warn patrons of the unreasonably
       dangerous condition.
¶ 13        The circuit court entered summary judgment in favor of defendants on November 18, 2013.
       The court noted it was undisputed that the pothole in question was located on property owned
       by AVG, not defendants. The court further determined that defendants had not appropriated

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       the property for their own use because the roadway was not the sole means of ingress and
       egress to the strip mall stores and cleaning and plowing the area did not amount to
       appropriation. Finally, the court noted that defendants did not have any contractual obligation
       to maintain the roadway. Caracci timely filed this appeal.

¶ 14                                             ANALYSIS
¶ 15       Caracci first contends that the trial court erred in denying her motion to strike defendants’
       amended answer to the first amended complaint. Defendants respond that this is an
       interlocutory order that is not reviewable on appeal. We disagree.
¶ 16       The appeal from a final judgment “draws in question all prior non-final orders and rulings
       which produced the judgment.” (Internal quotation marks omitted.) Burtell v. First Charter
       Service Corp., 76 Ill. 2d 427, 433 (1979). A reviewing court may consider an earlier judgment
       of the trial court where that judgment constitutes a procedural step in the progression leading to
       the entry of the final judgment from which the appeal has been taken. Id. at 436; Knapp v.
       Bulun, 392 Ill. App. 3d 1018, 1023 (2009).
¶ 17       Here, the denial of the motion to strike defendants’ amended answer was a procedural step
       in the progression leading to the entry of summary judgment in favor of defendants. Therefore,
       we have jurisdiction to consider the order of June 28, 2012. But we nevertheless conclude that
       the trial court properly denied Caracci’s motion to strike.
¶ 18       The denial of a motion to strike or dismiss is within the sound discretion of the trial court.
       Knox College v. Celotex Corp., 88 Ill. 2d 407, 422 (1981). An examination of the record
       confirms the circuit court’s finding that the original answer was not verified. Once a pleading
       has been amended, an admission made in an unverified original pleading does not constitute a
       judicial admission. Knauerhaze v. Nelson, 361 Ill. App. 3d 538, 558 (2005). Thus, nothing in
       the original answer constitutes a judicial admission.
¶ 19       Moreover, as the circuit court correctly noted, the amended answer does not contradict the
       original answer. In the original answer, defendants admitted that they are the owners of the
       property located at 10207-10237 Grand Avenue and the parking area for the subject premises.
       The address provided in the original answer corresponds to Lot 5 on the plat of survey. In the
       amended answer, defendants still admitted that they own the subject property known as the
       strip mall on Lot 5 and certain parking areas associated with the property, also on Lot 5, but
       clarified that they do not own the property that is legally described on the plat of survey as Lot
       4. Therefore, the amended answer merely clarified the original answer and the circuit court did
       not abuse its discretion in denying Caracci’s motion to strike the amended answer.
¶ 20       Caracci’s remaining contentions on appeal challenge the entry of summary judgment in
       favor of defendants. Summary judgment is appropriate when the pleadings, depositions, and
       admissions on file, together with any affidavits, show that there is no genuine issue as to any
       material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS
       5/2-1005(c) (West 2012); Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). “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. A triable issue precluding summary judgment exists where the material facts are
       disputed or where, the material facts being undisputed, reasonable persons might draw
       different inferences from the undisputed facts.” Manchester, 228 Ill. 2d at 417. We review an
       order granting summary judgment de novo. Id.

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¶ 21        Caracci claims that the circuit court erred in granting summary judgment because genuine
       issues of material fact exist as to whether defendants appropriated the common area roadway
       where she fell. As an initial matter, we note that throughout her brief Caracci characterizes the
       area where she fell as a “common area roadway/walkway.” There is nothing in the record to
       indicate the area in question was anything other than a roadway. The fact that people also walk
       across it to reach the strip mall does not make it a walkway, any more than the fact that people
       walk across a parking lot makes it anything other than a parking lot. Characterizing the
       roadway as a “roadway/walkway” creates unnecessary confusion because there is a covered
       walkway on the eastern edge of Lot 5 in front of the strip mall stores that is owned and
       maintained by defendants, while the area where Caracci fell is located in the roadway that runs
       along the western edge of Lot 4, parallel to the covered walkway on Lot 5. Therefore, we will
       refer to the area where Caracci fell as a roadway.
¶ 22        It is undisputed that defendants do not own or lease Lot 4, the property on which Caracci
       fell. Caracci argues, however, that a genuine issue of material fact exists as to whether
       defendants appropriated the roadway on Lot 4. Because there is no evidence in the record to
       suggest defendants appropriated the roadway, Caracci’s argument has no merit.
¶ 23        As a general rule, a private landowner owes a duty of care to provide a reasonably safe
       means of ingress and egress from his property but owes no duty to ensure the safe condition of
       a public roadway abutting that property. Gilmore v. Powers, 403 Ill. App. 3d 930, 933 (2010).
       An exception to this rule exists where an abutting landowner has assumed control of the public
       roadway for his own purposes. Id. “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.” Id.
¶ 24        Although Caracci cites to several cases in support of her position that defendants
       appropriated the portion of the roadway in question, these cases are inapposite. In Cooley v.
       Makse, 46 Ill. App. 2d 25, 30-31 (1964), the court held that a business owner had appropriated
       a publicly owned walkway between the sidewalk and the business entrance because it was the
       sole means of ingress and egress to the business and had no purpose other than to provide
       access to the business. In McDonald v. Frontier Lanes, Inc., 1 Ill. App. 3d 345, 352 (1971),
       there was evidence that the business had appropriated a city-owned sidewalk and parkway
       adjacent to the business by using them both for customer parking and blocking them for normal
       use. Similarly, in Friedman v. City of Chicago, 333 Ill. App. 3d 1070, 1075 (2002), the court
       held that the business appropriated the public sidewalk in its entirety when it blocked off a
       portion of the sidewalk for customer seating.
¶ 25        Here, there is no evidence of affirmative conduct on the part of defendants that prevented
       the public from using the portion of the roadway where Caracci fell in an ordinary manner, nor
       was that portion of the roadway the sole means of ingress and egress to the stores in the strip
       mall. In fact, defendants had been granted an easement by SuperValu that allowed strip mall
       customers to park in the Jewel parking lot in exchange for a maintenance contribution,
       providing another means of ingress and egress to the strip mall. Moreover, there was evidence
       of limited parking options on Lot 5 itself. The roadway had not been taken over by defendants
       for the exclusive use of patrons of the strip mall. There is no evidence that defendants blocked
       the roadway or interfered in any way with the use of the roadway by the general public. Thus,
       there is no factual support for Caracci’s contention that defendants appropriated the roadway.

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¶ 26       Caracci’s claim that defendants either appropriated the roadway or assumed a duty to
       maintain it by hiring someone to remove garbage from the roadway and plow it in the winter is
       also unavailing. Caracci cites to the Fourth District’s decision in Smith v. Rengel, 97 Ill. App.
       3d 204 (1981), in support of this argument. Smith found that a landlord’s claimed actions in
       shoveling snow from and filling holes in a public parkway in front of the landlord’s property
       was sufficient to give rise to a duty to maintain the parkway in a reasonably safe condition. Id.
       at 206. But as noted in Gilmore, the First and Second Districts have both rejected the holding in
       Smith as unpersuasive and overly broad. Gilmore, 403 Ill. App. 3d at 935-36 (citing Evans v.
       Koshgarian, 234 Ill. App. 3d 922, 926 (1st Dist. 1992), and Burke v. Grillo, 227 Ill. App. 3d 9,
       15-16 (2d Dist. 1992)). We agree with the holdings in Gilmore, Burke, and Evans that acts of
       maintenance are insufficient to show appropriation. See Gilmore, 403 Ill. App. 3d at 935 (no
       appropriation of parkway where defendants mowed the parkway grass and raked leaves);
       Burke, 227 Ill. App. 3d at 15-16 (no appropriation where defendants merely mowed grass and
       shoveled snow); Evans, 234 Ill. App. 3d at 926 (no assumption of control where abutting
       property owner swept, shoveled and salted the parkway).
¶ 27       We also reject Caracci’s argument that defendants appropriated the roadway or assumed a
       duty to maintain it by having the pothole repaired shortly after Caracci’s fall. Nothing in the
       record indicates that defendants repaired the roadway on Lot 4. The permit and the contract
       included in the record simply refer to the patching of deteriorated asphalt and potholes on
       unspecified property. Nathu Patel was not questioned specifically about these documents at his
       deposition but testified defendants had not repaired the pothole in which Caracci fell.
¶ 28       Caracci also contends that defendants breached their duty to provide a reasonably safe
       means of ingress and egress to the stores in the strip mall, relying on the affidavit of Van
       Ostrand. As the circuit court noted, Van Ostrand’s affidavit is replete with legal conclusions
       regarding whether defendants owed a duty of care with respect to the area where Caracci fell. It
       is well settled that an expert witness may not testify with respect to legal conclusions. See, e.g.,
       Todd W. Musburger, Ltd. v. Meier, 394 Ill. App. 3d 781, 800 (2009); LID Associates v. Dolan,
       324 Ill. App. 3d 1047, 1058 (2001); Sohaey v. Van Cura, 240 Ill. App. 3d 266, 283 (1992). Van
       Ostrand’s factually unsupported legal conclusions cannot raise a genuine issue of material fact
       regarding whether defendants breached a duty of care owed to Caracci.
¶ 29       Finally, Caracci contends that defendants breached a contractual duty to maintain the
       roadway. This argument likewise lacks merit. Caracci has produced no evidence of a contract
       between AVG or Kmart and defendants regarding the maintenance of Lot 4, which defendants
       clearly do not own or lease. In fact, the only contract regarding the maintenance of Lot 4 is the
       lease between AVG and Kmart, the terms of which expressly state that AVG is responsible for
       maintaining the roadway. Further, a lease agreement between defendants and one of the
       tenants of the strip mall cannot establish a contractual duty to maintain property that
       defendants do not own or lease and for which no maintenance agreement between the property
       owners and defendants has been produced.
¶ 30       Caracci has not shown that a genuine issue of material fact exists that would preclude
       summary judgment in favor of defendants. Therefore, because defendants do not own or lease
       the roadway where Caracci fell, did not appropriate the roadway, and had no contractual duty
       to maintain it, the circuit court properly entered summary judgment in favor of defendants.

¶ 31      Affirmed.

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