                                                               SIXTH DIVISION
                                                               April 14, 2006




No. 1-04-3157


DENNIS HAMMOND and LENORA HAMMOND,                      )      Appeal from the
                                                        )      Circuit Court of
              Plaintiffs-Appellants,                           )       Cook County.
                                                        )
v.                                                      )      No. 00 L 6118
                                                        )
SBC COMMUNICATIONS, INC. (SBC), a Delaware              )      Honorable
Corporation, AMERITECH CORPORATION, a                   )      Thomas R. Chiola,
Delaware Corporation, and ILLINOIS BELL                 )      Judge Presiding.
COMPANY, d/b/a Ameritech Illinois,                      )
                                                        )
              Defendants-Appellees                             )
                                                        )
(Rick Ekstrom, Sue Ekstrom, and Catherine                      )
Coleman, Administrator of the Estate of Elmer           )
Hartje, Deceased,                                       )
                                                        )
              Defendants).                              )



       JUSTICE FITZGERALD SMITH delivered the opinion of the court:

       Plaintiff Dennis Hammond was seriously injured in a motor vehicle accident

involving a fallen tree. In an amended complaint filed in the circuit court of Cook County

against defendants SBC Communications, Inc. (SBC), a Delaware corporation (SBC);

Ameritech Corporation, a Delaware corporation (Ameritech); and Illinois Bell Telephone

Company, d/b/a Ameritech Illinois (Illinois Bell), among others, plaintiffs Dennis and
1-04-3157

Lenora Hammond sought damages for personal injuries and loss of consortium. 1 After

hearing cross-motions for summary judgment, the circuit court granted judgment in

favor of defendants. Plaintiffs appeal, contending that defendants were negligent for

failing to clear the tree from land along the highway in which defendants hold an

easement. Plaintiffs also contend that the court improperly denied their requests for

admission of facts pursuant to Illinois Supreme Court Rule 216. 134 Ill. 2d R. 216.

Defendants have filed a joint brief in response. Additionally, Illinois Telecommunications

Association, Commonwealth Edison, and Nicor Gas Company have filed an amicus

curiae brief in support of the judgment for defendants. We affirm.

       On May 28, 1998, around 10 p.m., Dennis Hammond was driving south on Illinois

Route 47 in Plato Township, in Kane County, Illinois. After plaintiff had passed the

intersection with Bahr Road, a tree that stood on the southwest corner of the

intersection allegedly fell across Route 47 and caused permanent physical injuries to


       1
           Plaintiffs also named as defendants in this cause Catherine Coleman,

administrator of the estate of Elmer Hartje, deceased, and Rick and Sue Ekstrom, who

entered a farm lease with the decedent in 1997. Those defendants are not parties to

this appeal.




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plaintiff when his vehicle either struck the tree or was struck by the tree.

       Plaintiffs' six-count amended complaint, which was filed in February 2003,

alleges that defendants SBC, Ameritech, and Illinois Bell (collectively, defendants) 2 owe

a duty to the motoring public as holder of a right-of-way easement in land on the west

side of Route 47. Elmer Hartje was the owner of property on the southwest corner of

the Route 47 and Bahr Road intersection. 3 Defendants obtained the easement from

Elmer and Hazel Hartje in 1963 for the right to construct, reconstruct, operate and

maintain their telephone lines.

       The amended complaint alleges that, on the day in question and "for

approximately 50 years prior thereto, the decedent Elmer Hartje owned possessed,

maintained, operated, controlled or had right to control the certain land and premises

located at the southwest corner of Bahr Road and said Illinois Route 47, which ***


       2
           The amended complaint alleges that the defendants have "merged" or

"reorganized" with each other.

       3
           Route 47 was established through a 1931 dedication of plat to the State of

Illinois. The land governed by the dedication of plat includes a portion of tract 6, at the

southwest corner of Route 47 and Bahr Road; the State obtained control of that portion

of tract 6 by conveyance from a prior owner of the Hartje property. The right-of-way

obtained by the State extends 40 feet east and 40 feet west of the center line of Route

47.



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contained a certain tree *** approximately 37 to 38 feet west of the center line of Route

47 at that location *** [and] said tree was visibly slanting, leaning or bending so that its

trunk and/or branches were extending over Illinois Route 47 while such highway was

being used by the motoring public," including plaintiff. The tree in question allegedly

was "within 35 feet of an Ameritech service box and said service box was approximately

35 to 40 feet west of the center line of Route 47."

       Specifically, the amended complaint alleges that defendants SBC, Ameritech,

and Illinois Bell:

               "as a possessor of land and particularly as a possessor of

               land along a highway, owed the plaintiff and other members

               of the motoring public a duty to use reasonable care for the

               protection of travelers on the highway to prevent an

               unreasonable risk of harm for those travelers on the highway

               arising from a condition of said tree or trees near the

               highway. Further, said defendants had a duty to inspect all

               trees which might be in such dangerous condition as to

               endanger travelers."

The amended complaint alleges defendants were negligent because they failed, among

other things, to inspect, trim or remove the tree at issue, or to clear or keep cleared

trees and other obstructions along Route 47.

       Shortly after the amended complaint was filed, SBC and Ameritech filed a motion

to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure. 735 ILCS

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5/2-619 (West 2002). A short time later, plaintiffs filed the first of two sets of requests to

admit facts or the genuineness of documents pursuant to Rule 216 (134 Ill. 2d R. 216),

to which defendants filed responses and objections.

       In May 2004, Illinois Bell moved for summary judgment, noting the pending

motion to dismiss of its affiliates, SBC and Ameritech, and asserting that judgment in its

favor would require a similar judgment in favor of SBC and Ameritech. Later, plaintiffs

filed the second set of Rule 216 requests for admission, followed by their motion for

summary judgment.

       On September 17, 2004, after hearing argument on the cross-motions for

summary judgment, the court granted Illinois Bell's motion, found that the judgment

applied to SBC and Ameritech, and entered judgment in favor of those defendants and

against plaintiffs. In its oral rulings, the court found, essentially, that the easement, by

its plain language, was of a "limited nature" and, accordingly, defendants' rights and

duties were limited to only that which was necessary to fulfill the specific purposes of

the easement: that is, defendants did not have a right or a corresponding duty to

remove a tree that did not interfere with their facilities. The court also found that, based

on the highway right-of-way, the State was the dominant estate holder rather than

defendants.

       In its written order entered that day, the court: denied plaintiffs' motion for

summary judgment; entered summary judgment on all counts in favor of Illinois Bell,

SBC, and Ameritech; and found that ruling rendered moot SBC and Ameritech's section

2-619 motion to dismiss with no substantive ruling on that motion having been made.

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The court also denied plaintiffs' Rule 216 motions and granted defendants' good-cause

motions. This appeal followed.

                                             I

       On appeal, the central contention raised by plaintiffs is that defendants owe a

duty to the motoring public to clear trees from property along the highway in which

defendants have an easement. We disagree with that contention.

       Summary judgment should be granted where the pleadings, depositions,

affidavits, admissions, and exhibits on file, when viewed in the light most favorable to

the nonmovant, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West

2002); Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 411, 583 N.E.2d 538

(1991); Swope v. Northern Illinois Gas Co., 251 Ill. App. 3d 850, 853, 623 N.E.2d 841

(1993). The grant of summary judgment is reviewed de novo. McMahon v. Hines, 298

Ill. App. 3d 231, 235, 697 N.E. 2d 1199 (1998).         A complaint sounding in

negligence must allege facts sufficient to show the existence of a duty, a breach of that

duty, and injury to the plaintiff which is proximately caused by that breach. Gouge v.

Central Illinois Public Service Co., 144 Ill. 2d 535, 542, 582 N.E.2d 108 (1991);

McDermott v. Metropolitan Sanitary District, 240 Ill. App. 3d 1, 26, 607 N.E.2d 1271

(1992). The existence of a duty is a question of law to be determined by the court.

Gouge, 144 Ill. 2d at 542; see also Miller v. Highway Commissioner of North Otter

Township Road District, 344 Ill. App. 3d 1157, 1164, 801 N.E.2d 599 (2003). In making

such determination, the court considers "whether the parties stood in such a relationship

                                            -6-
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to one another that the law imposes an obligation on the defendant to act reasonably for

the protection of the plaintiff." Gouge, 144 Ill. 2d at 542.

       To determine the existence of a duty in a particular case, the court must weigh

the reasonable foreseeability of the injury, the reasonable likelihood of the injury, the

magnitude of the burden of guarding against it, and the consequences of placing that

burden on the defendant. Gouge, 144 Ill. 2d at 542; Polak v. Person, 232 Ill. App. 3d

505, 510, 597 N.E.2d 810 (1992). Although the foreseeability of the injury is an

important factor in deciding whether a duty exists, it is not solely determinative of that

question. Hutchings v. Bauer, 149 Ill. 2d 568, 571, 599 N.E.2d 934 (1992); Polak, 232

Ill. App. 3d at 511-12. Rather, the foreseeability of harm must be balanced against the

burdens and consequences resulting from the recognition of a duty. Hutchings, 149 Ill.

2d at 571. Absent a showing from which the court can infer the existence of a duty,

summary judgment in favor of the defendant is proper. Swope, 251 Ill. App. 3d at 853-

54.

       Plaintiffs assert that the terms of the easement grant defendants not only the

right to use of the property, but, also, a corresponding duty to maintain the property in

reasonably safe condition. They assert that defendants were holders of the dominant

tenement and, as such, they owed a duty to "take some remedial action" concerning the

tree that fell, but they did nothing to ensure the safety of the motoring public.

Defendants counter that the easement's plain language controls and limits both their

rights and duties as to the property. We agree with defendants.

       It is well established that an easement is " 'a right or a privilege in the real estate

                                             -7-
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of another' [citation]" (McDermott, 240 Ill. App. 3d at 20) which may be created by an

express grant that determines the extent of the easement (Duresa v. Commonwealth

Edison Co., 348 Ill. App. 3d 90, 101, 807 N.E.2d 1054 (2004)). The same rules apply to

grants of easements as to deeds and other written instruments: in the construction of

instruments creating easements, courts ascertain and give effect to the intentions of the

parties. Duresa, 348 Ill. App. 3d at 101; McDermott, 240 Ill. App. 3d at 20. That

consideration should include the circumstances at the time of the conveyance, including

the nature of the interest conveyed and the objective of the conveyance. McDermott,

240 Ill. App. 3d at 20. Where an easement exists by express grant, and the language

thereof is clear and free from doubt, the use of the easement must be confined to the

terms and purposes of the grant. Duresa, 348 Ill. App. 3d at 101. Courts generally

construe easement agreements strictly, so as to permit the greatest possible use of the

property by its owner. Duresa, 348 Ill. App. 3d at 101; McMahon, 298 Ill. App. 3d at

236-37.

      The easement at issue in the instant case exists by the express grant of the 1963

conveyance from the Hartjes. The easement:

             "grants and conveys to [defendants] *** the right to

             construct, reconstruct, operate and maintain its telephone

             lines, consisting of such wires, cables and other fixtures as

             the grantee may from time to time require, with the right to

             permit the attachment of and to carry in conduit wires and

             cables of any other companies and to clear and keep

                                           -8-
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              cleared such trees, roots, bushes and other obstructions

              from the surface and subsurface as may be required upon,

              along, and under the public roads, streets and highways, on

              or adjoining the property which the undersigned own or have

              an interest in."

It further provides that "[t]he confines of the west half of the public road known as Illinois

State Route 47 being part of the property" and "IT IS AGREED THAT SAID LINES WILL

BE PLACED WITHIN THE CONFINES OF THE PUBLIC HIGHWAY."

       We believe that the easement here is not ambiguous and, thus, its plain

language controls. See Duresa, 348 Ill. App. 3d at 101. The easement conveys to

defendants the right to use the property for the limited purpose stated, which is "to

construct, reconstruct, operate and maintain" telephone lines and other telephone

equipment. Since the language is clear and free from doubt, the easement is to be

construed strictly and the use of the easement is to be confined to terms and purposes




                                             -9-
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of the grant. See Duresa, 348 Ill. App. 3d at 101. 4

       At this juncture, we note that plaintiffs' claims as to those terms and purposes are

couched in references to dominant and servient estates. To the extent such principles

are applicable here, we note further that the principle of concurrent, rather than

exclusive, use underlies the law concerning easements. McMahon, 298 Ill. App. 3d at

239. The user of the right of the easement has what is referred to as a dominant estate

over the used land, which is referred to as the servient estate. McMahon, 298 Ill. App.

3d at 235-36. The easement holders, or owners of the dominant estate, are entitled to

necessary use of the easement. McMahon, 298 Ill. App. 3d at 236. However, where,

as here, the easement is limited in scope or purpose, the easement holder becomes a

trespasser by misusing or exceeding the extent of the easement. Duresa, 348 Ill. App.

       4
           Although we note plaintiffs' reliance upon case law of other jurisdictions, we confine

our discussion to an examination of the express and specific terms of the easement. See

Duresa, 348 Ill. App. 3d at 102.




                                                -10-
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3d at 102. Thus, where the easement is so limited, the easement holder may not

increase the burden on the property owner. See Duresa, 348 Ill. App. 3d at 101-02; see

also McMahon, 298 Ill. App. 3d at 236.

       Plaintiffs' claim concerning the existence of a duty is based on what we believe to

be a misreading of the plain language of the easement. Plaintiffs argue on appeal, as

they did below, that defendants have a separate and distinct right, and corresponding

duty, to clear the trees along Route 47. However, such reading would unreasonably

parse a right to clear trees from the underlying purpose of the easement, which is,

again, to maintain and operate telephone equipment. 5


       5
           We note that the court below referred to this during the hearing as a "right to

bury cables." Although this is stated more narrowly than the entirety of the right granted

defendants, to "construct, reconstruct, operate and maintain" both wires and "other

fixtures"--in addition to cables--we believe, contrary to plaintiffs' assertions, the court

correctly understood and stated the scope of the easement. It appears, rather, that the




                                             -11-
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court merely avoided repeating the entire phrase and, in the context of the hearing,

simply used "the right to bury cables" as shorthand.



                                          -12-
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       In plaintiffs' reading, defendants' right to clear trees is distinct from the right to

operate and maintain their telephone equipment. However, were we to view the grant

of the easement as plaintiffs urge (and as they articulated at the hearing below), as

conveying a broad right to cut trees "as necessary along the highway," we would

wonder (as did the court below), "As may be necessary for what?" We have already

determined that the purpose of the easement was a limited one: "to construct,

reconstruct, operate and maintain" telephone lines and other equipment. Because the

purpose is limited, we reject plaintiffs' assertion that the easement grants a broad and

apparently unlimited right and duty relating to all trees and other growth along the

highway. See Duresa, 348 Ill. App. 3d at 101.

       Again, because the primary purpose of the easement was to allow the operation

and maintenance of telephone equipment--not to trim trees--we believe the other

activities allowed by the easement must be read as relating to, not independent from,

that primary purpose. The easement, after setting forth the primary purpose, adds,

"with the right to permit the attachment of and to carry in conduit wires and cables ***

and to clear and keep cleared such trees, roots, bushes and other obstructions."

(Emphasis added.) Thus stated, the right to conduct these additional activities must

relate to the purpose of the operation and maintenance of defendants' equipment.

       To construe these rights, either to carry in conduit or to clear trees or roots, as

independent of the primary purpose would be, we believe, an unreasonable reading of

the 1963 grant of easement. Rather, because the purpose and scope of the easement

is limited, the grant of the right to clear and keep cleared trees and other growth must

                                             -13-
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also be read as limited and within--not independent from--the scope of the easement.

That is, the right to clear trees "as may be required" is a right only to do so as may be

necessary for the operation or maintenance of defendants' equipment. When read in

the context of the scope of the easement, then, the right to clear trees does not convey

a broad or unlimited right to defendants; accordingly, the easement does not impose a

corresponding, broad duty to do so either. Thus, construing the grant of this right

strictly, as we must, the plain language of the easement limits the right to clear trees to

doing so only for maintenance of defendants' telephone equipment. See Duresa, 348

Ill. App. 3d at 101; McMahon, 298 Ill. App. 3d at 236-37. Therefore, we find no broad

right, or corresponding duty, to clear or otherwise maintain trees on the property for the

safety of the motoring public.

       Although our determination that the plain language of the easement imposes no

duty on defendants to clear trees for the protection of motorists could end the

discussion of duty, we choose to address, briefly, plaintiffs' remaining contentions

concerning the existence of a duty. Plaintiffs also assert that such duty exists based on

the McDermott court's holding that the defendant easement holder had not only the right

but the duty to repair and maintain the drainage ditch that was the subject of the

easement. See McDermott, 240 Ill. App. 3d at 26. We find such reliance, as well as

plaintiffs' related claims concerning defendants' possession and control of the property,

to be misplaced.

       In McDermott, the plaintiff was injured after he fell into a storm water drainage

ditch while he was riding his bicycle. There, the defendant Village of Palatine (Village)

                                            -14-
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conveyed the property to another entity, but retained an easement interest in the ditch.

A finding of tort liability against the Village was affirmed, based on the Village's use and

control of the ditch as holder of a utility easement and its failure to repair and maintain

the ditch. McDermott, 240 Ill. App. 3d at 26.

       Contrary to plaintiffs' insistence, however, McDermott does not support a

conclusion that defendants here, as holder of the limited easement, would have an

apparently unlimited duty to maintain the trees on the property. There, the easement in

the drainage ditch was for the purpose of carrying storm water for the Village; thus, the

ditch was essential to the purpose of the easement. Here, on the other hand, the tree at

issue was not in any way related to the purpose of the easement. To impose a duty

here to repair and maintain, or to clear the tree, would

exceed the scope and purpose of the easement, which is, again, the operation and

maintenance of defendants' telephone equipment. Further, any possession or control

defendants have of the property is limited to the scope of the easement. 6


       6
           We do not address plaintiffs' related contention that defendants, rather than the

State, had possession and control of the property. We find plaintiffs' additional

assertions about the 1931 plat of dedication to the State and their claims that the State




                                             -15-
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had less control of the property than defendants to be unavailing.



                                          -16-
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       Plaintiffs also assert that defendants owe a broad duty as possessors of land,

based largely upon an exception to nonliability set forth in the Restatement (Second) of

Torts. See Restatement (Second) of Torts '363(2), at 258 (1965). This assertion, too,

is unfounded.

       The general rule set forth in section 363 (Natural Conditions) of the Restatement

(Second) of Torts provides that "a possessor of land *** is [not] liable for physical harm

caused to others outside of the land by a natural condition of the land." Restatement

(Second) of Torts '363(1), at 258 (1965). The "natural condition of the land" includes

"the natural growth of trees *** and other vegetation upon land not artificially made

receptive to them." Restatement (Second) of Torts '363, Comment b, at 258 (1965).

Under the general rule, then, even considering defendants to be "possessors" of the

land for the limited purpose of their easement, liability for the tree would not attach

because it is a natural condition of the land.

       The exception to the general rule pertains to possessors of land "in an urban

area" where such possessors are "subject to liability to persons using a public highway

for physical harm resulting from his failure to exercise reasonable care to prevent an

unreasonable risk of harm arising from the condition of trees on the land near the

highway." Restatement (Second) of Torts '363(2), at 258 (1965). Plaintiffs rely upon

this exception and its expansion in Mahurin v. Lockhart, 71 Ill. App. 3d 691, 390 N.E.2d

523 (1979).

       In Mahurin, the court recognized the above exception in its consideration of the

traditional rule of nonliability. Mahurin, 71 Ill. App. 3d at 692. There, however, the issue

                                            -17-
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was presented in the context of a residential landowner's duty to an adjoining landowner

for an unsound condition of a tree upon his land. See Mahurin, 71 Ill. App. 3d at 692.

The extension of the section 363(2) exception was to adjoining landowners (Mahurin, 71

Ill. App. 3d at 693), not to owners of rural property. Yet, in raising the contention that

this exception applies, plaintiffs fail to address its requirement that the possessor of land

be in an urban area or residential area.

       Here, the record establishes that the land was neither urban nor residential,

making the exception to nonliability unavailable. Plaintiffs' own pleadings would refute

any characterization of the property in question as being in an urban area. Plaintiffs'

amended complaint alleges that the tree was "on or immediately adjacent to land that

was plowed and cultivated by the defendants, Rick and Sue Ekstrom" (emphasis

added); plaintiffs' motion for summary judgment refers to the grantors' land, the Hartje

property, as "farm land" and contains attached exhibits that support such

characterization. One photographic exhibit shows the trunk of the fallen tree in, or at

least "immediately adjacent to," a field of crops. Additionally, aerial photographs

submitted with the motion show the entire surrounding area to be rural in character, with

farm fields on all four corners of the intersection extending beyond the next visible roads

in all directions. Given the clearly rural nature of the property in question, neither the

Restatement exception for possessors of urban land (see Restatement (Second) of

Torts '363(2), at 258 (1965)), nor the extension of that exception to owners of

residential land (see Mahurin, 71 Ill. App. 3d at 693), would be applicable here.

       Finally, we note the policy concerns raised by defendants and the amici. They

                                            -18-
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contend that the imposition of a broad duty on a public utility to cut or otherwise

maintain trees for purposes (i.e., the safety of the motoring public) independent of the

operation of their equipment would involve significant burdens on the public utilities. We

agree.

         Our courts have considered the economic burden in deciding that utility

companies did not owe a duty based on artificial conditions, such as utility poles, placed

by roadways. See Gouge, 144 Ill. 2d at 547 (if duty were placed on utility company to

ensure that its utility poles fall

" 'away from the roadway,' the economic costs would be staggering"); Miller, 344 Ill.

App. 3d at 1169 (while cost of relocating single utility pole may be relatively small,

economic costs of requiring survey of all poles, for determination whether placement

was in dangerous location, would be "staggering"). See also Boylan v. Martindale, 103

Ill. App. 3d 335, 344-45, 431 N.E.2d 62 (1982) (discussing considerations of public

policy in rejecting imposition of duty based on placement of utility pole); Hoffman v.

Vernon Township, 97 Ill. App. 3d 721, 726-27, 423 N.E.2d 519 (1981) (same). Since

our courts have determined that placing a burden upon utility companies to take

remedial steps related to artificial conditions, of their own creation, would be too great,

we believe the same would be true concerning natural conditions. Here, because

defendants did not plant the tree at issue, there would be more justification for applying

the same reasoning. Any duty to clear trees and other natural growth, for purposes

independent of the operating the telephone equipment, would impose a similarly

staggering economic cost on defendants. Accordingly, public policy concerns also

                                            -19-
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support the judgment of the court below.

                                               II

       Having determined that, under the terms of the easement, defendants owed no

duty to clear trees that do not interfere with the operation of their equipment, defendants

were entitled to summary judgment in their favor. See Swope, 251 Ill. App. 3d at 853-

54. Given this determination, we address only briefly plaintiffs' remaining contention,

that the court improperly denied both sets of their requests to admit, prejudicing them by

the denial, and improperly allowed defendants' late verification. We disagree with

plaintiffs' contentions and find that, even if the requests had been admitted, the outcome

would not change because defendants owed no duty.

       As previously noted, plaintiffs filed two separate sets of requests to admit

pursuant to Supreme Court Rule 216. The first set was was filed on May 13, 2003.

Defendants SBC and Ameritech timely filed a joint response on June 9, 2003; Illinois

Bell filed a separate response the same day. Both responses were signed by counsel,

but not by the parties, and Illinois Bell's

was also supported by an affidavit of its employee Steven Krocka.

       On July 12, 2004, after Illinois Bell moved for summary judgment, plaintiffs filed a

second set of Rule 216 requests for admission. On August 9, 2004, defendants timely

filed responses and objections that were signed by counsel; on August 24, 2004,

defendants filed the same responses with the attached signature and verification of

SBC employee Jeffrey Tucker. Plaintiffs subsequently filed a motion to strike the Rule

216 verification. Defendants filed a combined brief in opposition to the motion to strike

                                              -20-
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and for a finding of good cause under Supreme Court Rule 183 (134 Ill. 2d R. 183),

supported with numerous exhibits, including affidavits from employees Tucker and

Krocker, attesting to their unavailability to verify the responses with the 28-day deadline.

       Rule 216 provides that a party to an action may serve another party to that action

with a written request for his admission of "any specified relevant fact" set forth in the

request. 134 Ill. 2d R. 216(a); P.R.S. International, Inc. v. Shred Pax Corp., 184 Ill. 2d

224, 234, 703 N.E.2d 71 (1998). The party receiving the request must then either deny

or object to the request within 28 days, but if that party does neither, the factual matters

in the request are deemed judicial admissions. See 134 Ill. 2d R. 216(c); see also

Banco Popular v. Beneficial Systems, Inc., 335 Ill. App. 3d 196, 208, 780 N.E.2d 1113

(2002) (admission of facts which cannot later be disputed results from failure to respond

as required by Rule 216). However, because a request seeking to admit legal

conclusions is improper in form (see P.R.S. International Inc., 184 Ill. 2d at 236), the

failure to respond to that request does not result in a judicial admission. See P.R.S.

International Inc., 184 Ill. 2d at 239; Hubeny v. Chairse, 305 Ill. App. 3d 1038, 1043, 713

N.E.2d 222 (1999) (failure to respond to request for admission of conclusion of law is

irrelevant).

       The parties dispute the standard of review applicable to the rulings on the

requests to admit. Plaintiffs assert that the entire question concerning the propriety of

the requests and the time extension for verification must be reviewed de novo.

However, defendants correctly state that, while issues of which requests were proper

under the rule and which requests should be deemed admissions are questions of law

                                            -21-
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to be reviewed de novo (P.R.S. International, Inc., 184 Ill. 2d at 233-34), the

determination of good cause for late verification is reviewed for an abuse of discretion

(Larson v. O'Donnell, 361 Ill. App. 3d 388, 395, 836 N.E.2d 863 (2005)).

       Although Rule 216 requests to admit must be strictly complied with (Bright v.

Dicke, 166 Ill. 2d 204, 208-09, 652 N.E.2d 275 (1995); Tires 'N Tracks, Inc. v. Dominic

Fiordirosa Construction Co., 331 Ill. App. 3d 87, 92, 771 N.E.2d 612 (2002)), Rule 183

provides the trial court with discretion to allow responses to be served beyond the 28-

day deadline set forth in Rule 216 (Larson, 361 Ill. App. 3d at 395). Before that

discretion may "come into play," however, the responding party must show good cause

for the extension. Bright, 166 Ill. 2d at 209; Larson, 361 Ill. App. 3d at 395. That is, the

responding party cannot rely upon the "mere absence of inconvenience or prejudice to

the opposing party" (Bright, 166 Ill. 2d at 209) nor mistake, inadvertence, or attorney

neglect as the sole basis for a good-cause determination (Larson, 361 Ill. App. 3d at

396), but must, instead, assert some independent basis for allowing the untimely

response (Bright, 166 Ill. 2d at 209; Larson, 361 Ill. App. 3d at 395).

       Plaintiffs first argue that the court "felt that Rules 216 and 183 could be ignored"

and "never even considered good cause." This assertion appears to be based solely

upon the court's use of the term "good faith" in its oral ruling. Where the record here

shows that the court referred to written motions and exhibits before it, which plainly

sought a good-cause finding, and the court's written order clearly granted such motion,

we are not persuaded by plaintiffs' claim that the court ignored the applicable supreme

court rule and thus reject plaintiffs' assertion that the court failed to make the requisite

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good-cause finding.

       Plaintiffs then argue that good cause does not exist for the late verification

because defendants failed to apply for an extension before the deadline to respond had

passed. This claim

is refuted by the language of Rule 183. Rule 183 provides that the court "may extend

the time for filing any pleading or the doing of any act which is required by the rules to

be done within a limited period, either before or after the expiration of the time."

(Emphasis added.) 134 Il. 2d R. 183.

       Next, plaintiffs attack specific grounds for the delay in verification, particularly

those concerning affiant Tucker's unavailability to timely verify the responses. They

also maintain that the first set of responses, which contained Krocka's affidavit, was not

properly verified. Contrary to plaintiffs' contention, defendants did not claim the late

verification should be allowed due to lack of prejudice or mistake. Defendants instead

offered the affiants' unavailability as an independent ground for allowing the late

verification. We disagree with plaintiffs' implicit position that the independent ground

offered was not good enough; in so doing, we note that the situation here was unlike

those in cases relied upon by plaintiffs, where the late-responding parties offered no

good cause for their untimely responses. See Moy v. Ng, 341 Ill. App. 3d 984, 793

N.E.2d 919 (2003); Tires 'N Tracks, Inc., 331 Ill. App. 3d 87, 771 N.E.2d 612; Harris

Bank St. Charles v. Weber, 298 Ill. App. 3d 1072, 700 N.E.2d 722 (1998). Rather,

based upon the grounds presented, that of the affiants' unavailability, we do not believe

the court abused its discretion by granting the good-cause extension.

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      Moreover, even were we to find that the good-cause motion should not have

been granted, a consideration of the requests would lead us to conclude that, ultimately,

the court did not err in granting summary judgment for defendants. See Larson, 361 Ill.

App. 3d at 396. Upon consideration of whether the requests for admission made by

plaintiffs were proper (see Larson, 361 Ill. App. 3d at 396), certain requests would be

deemed improper as seeking conclusions of law and such requests would not be

admitted (see Larson, 361 Ill. App. 3d at 396; Hubeny, 305 Ill. App. 3d at 1043). The

remaining requests contain either facts already admitted by defendants or factual issues

that, based on our earlier determination that no duty is owed, would not change the

outcome of the ruling on defendants' motion for summary judgment. Accordingly,

because those requests are not dispositive, they are not considered separately. See

Larson, 361 Ill. App. 3d at 396. Again, defendants would be entitled to summary

judgment as a matter of law because they do not owe a duty to the motoring public to

clear and keep cleared the trees or other growth on the easement property. See

Swope, 251 Ill. App. 3d at 853-54. Thus, even if defendants' good-cause motion had

not been granted, the facts that would be admitted from plaintiffs' requests would not

alter the ruling on defendants' motion for summary judgment.

      Therefore, the circuit court properly granted summary judgment in favor of

defendants. Accordingly, we affirm the judgment of the circuit court.

      Affirmed.

      TULLY and O'MALLEY, JJ., concur.



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