                           No. 3--04--0533

                        filed April 19, 2006
                               IN THE

                   APPELLATE COURT OF ILLINOIS

                           THIRD DISTRICT

                              A.D., 2006


KELLY PAGELOFF and DALE         )    Appeal from the Circuit Court
PAGELOFF,                       )    of the 14th Judicial Circuit,
                                )    Whiteside County, Illinois
     Plaintiffs-Appellants,     )
                                )
          v.                    )    No.     03--L--18
                                )
MAXINE GAUMER and RUFFIT        )

PARK,                           )
                                )    Honorable Timothy J. Slavin,
     Defendants-Appellees.      )    Judge, Presiding.


  PRESIDING JUSTICE SCHMIDT delivered the opinion of the court:



     While camping at defendants' campground, plaintiff, Kelly

Pageloff, stepped on a walnut and fell.      Plaintiffs filed a

common law negligence and loss of consortium action against

defendants, Maxine Gaumer and Ruffit Park (hereinafter,

collectively Gaumer).   The circuit court of Whiteside County

granted defendants' motion for summary judgment.         Plaintiffs

appeal.

                              BACKGROUND

     Like many Americans, plaintiffs apparently enjoy getting
away from their home and camping in the great outdoors.   They own

their own camper.   During Labor Day weekend 2001, the Pageloffs

went camping at Ruffit Park, which was owned by Maxine Gaumer.

Gaumer owned Ruffit Park for nearly 40 years and oversaw the

maintenance and operation of the campground property.   The

Pageloffs had camped at Ruffit Park many times.   At the time that

Kelly Pageloff called Gaumer to make a reservation for Labor Day

weekend, she requested their usual campsite.
     When the Pageloffs arrived at Ruffit Park, the site they had

requested was still occupied by another camper so Gaumer offered

another site.   The Pageloffs were dissatisfied with this other

site, but they chose to stay at Ruffit Park instead of returning

home.   Walnut trees were adjacent to this campsite, and for the

entire weekend walnuts, as they are prone to do in late summer,

fell off the trees onto the site.    What might have been a baker's

dream, turned into plaintiffs' nightmare: walnuts everywhere.

During her deposition, Kelly stated that she and Dale had been

cleaning the fallen walnuts up all weekend and that the walnuts

"were everywhere" and "everywhere you tried to walk."   Falling

walnuts even damaged plaintiffs' camper.   Notwithstanding the

unrelenting barrage of falling nuts, plaintiffs remained on the

campsite.   The Pageloffs brought a rake with them and used it to

clean walnuts from the campsite during the entire weekend.    Three

days after their arrival, while cleaning up the campsite to go

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home, Kelly stepped on a walnut and fell, suffering a rather

severe injury to her left ankle.       She did not know how long the

offending nut had been on the ground.

     The Pageloffs filed a two-count complaint against Gaumer and

Ruffit Park.   Count I is a common law negligence claim for

Kelly's injuries and count II is a claim by Dale for loss of

consortium.    Gaumer filed a motion for summary judgment in which

she argued that she did not owe Kelly a duty to clear the walnuts
from the campsite nor did she owe a duty to warn because the

risks associated with walnuts were open and obvious.      Gaumer also

argued that Kelly assumed the risk of injury by choosing to camp

at Ruffit Park.   The trial court granted Gaumer's motion for

summary judgment.

                              ANALYSIS

     On appeal, the reviewing court applies a de novo standard of

review to a grant of summary judgment.       General Casualty

Insurance Co. v. Lacey, 199 Ill. 2d 281, 284, 769 N.E.2d 18, 20

(2002); Majca v. Beekil, 183 Ill. 2d 407, 416, 701 N.E.2d 1084,

1088 (1998).   Thus, the reviewing court, viewing the evidence in

the light most favorable to the nonmovant, must determine whether

a genuine issue of material fact exists and whether the moving

party is entitled to a judgment as a matter of law.       Majca v.

Beekil, 183 Ill. 2d at 416, 701 N.E.2d at 1088.

                               I. Duty

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     To recover damages based upon a defendant's alleged

negligence, a plaintiff must allege and prove that the defendant

owed a duty to the plaintiff, that defendant breached that duty,

and that the breach was the proximate cause of the plaintiff's

injuries.    First Springfield Bank & Trust v. Galman, 188 Ill. 2d

252, 256, 720 N.E.2d 1068, 1071 (1999).   Whether or not a duty of

care exists is a question of law that may be determined on a

motion for summary judgment.    Curatola v. Village of Niles, 154
Ill. 2d 201, 207, 608 N.E.2d 882, 885 (1993).   The operator of a

business owes his invitees a duty to exercise reasonable care to

maintain his premises in a reasonably safe condition for use by

the invitees.    Ward v. K Mart Corp., 136 Ill. 2d 132, 141, 554

N.E.2d 223 (1990).   It is undisputed that Gaumer owed the

Pageloffs a duty to maintain Ruffit Park in a reasonably safe

condition.

     Therefore, we must determine whether Gaumer's duty to

maintain Ruffit Park in a reasonably safe condition includes a

duty to clear fallen walnuts from the Pageloffs' campsite or,

alternatively, to warn of the walnuts.

     In order to determine whether a duty is owed, the courts

consider four factors: (1) the likelihood of injury; (2) the

reasonable foreseeability of such injury; (3) the magnitude of

the burden of guarding against injury; and (4) the consequences

of imposing that burden on the defendant.    Bucheleres v. Chicago

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Park District, 171 Ill. 2d 435, 450, 665 N.E.2d, 826, 833 (1996).

     The first two factors lend little to the imposition of a

duty here.    First, the law generally considers the likelihood of

injury slight when the condition in issue is open and obvious

because it is assumed that persons encountering the potentially

dangerous condition of the land will appreciate and avoid the

risks.   Bucheleres v. Chicago Park District, 171 Ill. 2d at 456,

665 N.E.2d at 836.   "In contrast, if a danger is concealed or
latent, rather than open and obvious, the likelihood of injury

increases because people will not be as readily aware of such

latent danger."    Bucheleres v. Chicago Park District, 171 Ill. 2d

at 456, 665 N.E.2d at 826.   Plaintiffs do not argue that the

risks were latent or concealed.       They were well aware of the

existence of the walnuts on the ground.       The risks of stumbling

or tripping on a walnut at Ruffit Park campground is even more

open and obvious than the risk of diving head first into the

murky waters of Lake Michigan (see Bucheleres v. Chicago Park

District, 171 Ill. 2d 435, 665 N.E.2d 826).       At least the hazard

is visible.

     The legal concept of reasonable foreseeability of injury

arising from open and obvious conditions takes into account that

even young, unsophisticated, or immature people are generally

assumed to appreciate the risks associated with such conditions

and, therefore, exercise care for their own safety.       Bucheleres

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v. Chicago Park District, 171 Ill. 2d at 456-57, 665 N.E.2d at

836.    The plaintiffs are adults.

       The last two factors meditate heavily against finding a duty

here.    The magnitude of the burden of guarding against injury

would be beyond onerous.    Imposing the burden on a landowner

would have obvious consequences.         Practically speaking, you could

not have walnut trees on campgrounds.        Like the snow from the sky

in winter, nuts fall from walnut trees in the late summer.
Gaumer asks us to apply the natural accumulation rule, heretofore

reserved for snow and ice.    While not controlling, we find the

law in this area to be instructive.

       A landowner does not have a duty to remove natural

accumulations of ice or snow from his premises.         Ordman v. Dacon

Management Corp., 261 Ill. App. 3d 275, 279, 633 N.E.2d 1307,

1310 (1994).    Illinois courts have consistently found that a

landowner does not have a duty to keep his or her premises

safeguarded against the potential dangers of naturally

accumulated snow and ice because it would be unreasonable to

force a landowner to expend the money and labor necessary to

constantly keep the area safe.       Kellermann v. Car City Chevrolet-

Nissan, Inc., 306 Ill. App. 3d 285, 290, 713 N.E.2d 1285, 1289

(1999).    In our opinion, it would be no less onerous to require a

landowner to remove all walnuts that fall from trees on his or

her property, than it would be to require removal of all natural

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accumulations of snow and ice.    It is unreasonable to impose such

a duty on every landowner.    Of course, defendants could cut down

all of the nut-bearing trees and pave their property.    That might

make for a safer campground.    Most likely one devoid of campers,

too.    Gaumer did not have a duty to keep the ground free of

walnuts.

       We, likewise, hold that there is no duty to warn of the

risks inherit in wooded campgrounds.    Where there are trees,
there will likely be twigs, branches, nuts, or leaves on the

ground below them.    A warning would only tell campers what they

already know: walnuts on the ground create an uneven walking

surface and, therefore, a potential for a trip or fall.    See

Sollami v. Eaton, 201 Ill. 2d 1, 772 N.E.2d 215 (2002).

       The Pageloffs claim that the walnut trees are an integral

component of the Ruffit Park commercial enterprise, that the

walnuts which fall from these trees are inseparable from the

trees and, therefore, Gaumer effectively placed the walnuts on

the ground and caused Kelly's injury.    This argument, too, is

without merit.    The cases cited by the Pageloffs to support this

position are clearly distinguishable.    They involve foreign

substances actually placed on the land by the owner.    See Wind v.

Hy-Vee Food Stores, Inc., 272 Ill. App. 3d 149, 650 N.E.2d 258

(1995) (plaintiff slipped on floor mats placed inside the store);

Donoho v. O'Connell's, Inc., 13 Ill. 2d 113, 148 N.E.2d 434

                                  7
(1958) (plaintiff slipped on an onion on the floor of the

defendant restaurant and the evidence indicated that a busboy

knocked the onion to the floor while cleaning a table); Rutzen v.

Pertile, 172 Ill. App. 3d 968, 527 N.E.2d 603 (1988) (plaintiff

injured when stepping on a rotted portion of a dock pier at the

defendant's supper club); Piper v. Moran's Enterprises, 121 Ill.

App. 3d 644, 459 N.E.2d 1382 (1984) (plaintiff injured while

standing on wooden pallets which the store had placed inside to
reach a case of pop in defendant's store).     Kelly did not fall in

a restaurant, a grocery store, or a supper club; she alleges that

she fell after stepping on a walnut in a wooded campground.

     Therefore, based upon our consideration of all of the

relevant factors, we conclude that Gaumer breached no duty owed

to plaintiffs.

                      II. Assumption of Risk

      Because we have found that defendants breached no duty owed

to the plaintiffs, we need not address defendants' assumption of

the risk argument.   However, we note in passing that under the

facts presented in this case, plaintiffs clearly assumed any

risks associated with the falling or fallen walnuts.

                            CONCLUSION

     The judgment of the circuit court of Whiteside County is

affirmed.

     Affirmed.

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HOLDRIDGE and O'BRIEN, JJ., concur.




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