                                         2015 IL App (1st) 133897

                                                                                    THIRD DIVISION
                                                                                       April 29, 2015

     No. 1-13-3897


     JUDY CARACCI,                                            )              Appeal from the
                                                              )              Circuit Court of
             Plaintiff-Appellant,                             )              Cook County
                                                              )
     v.                                                       )              No. 10 L 8766
                                                              )
     NATHU J. PATEL, ISHWAR D. DHIMAR and                     )              Honorable
     AMIT N. PATEL,                                           )              Kathy M. Flanagan,
                                                              )              Judge Presiding.
             Defendants-Appellees.                            )
                                                              )
                                                              )

             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
     No. 1-13-3897

        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


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        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 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

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          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 or 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

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          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 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.




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          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,

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          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.

¶ 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

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          (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

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          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.

¶ 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



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          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



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          contractual duty to maintain it, the circuit court properly entered summary judgment in favor

          of defendants.

¶ 31         Affirmed.




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