                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




              Burns v. Simon Properties Group, LLP, 2013 IL App (5th) 120325




Appellate Court            MERCEDENA BURNS, Plaintiff-Appellant, v. SIMON PROPERTIES
Caption                    GROUP, LLP, a/k/a Simon Property Group (Illinois), L.P., Defendant-
                           Appellee.



District & No.             Fifth District
                           Docket No. 5-12-0325


Filed                      October 2, 2013


Held                       The trial court properly dismissed a complaint alleging that plaintiff was
(Note: This syllabus       injured by a public nuisance when she fell in a pothole in a mall parking
constitutes no part of     lot in which defendant once had an interest, since defendant had no
the opinion of the court   ownership interest in the parking lot at the time plaintiff fell or when
but has been prepared      defendant was the property manager of the mall and the contract
by the Reporter of         defendant had to maintain the parking lot terminated four years before
Decisions for the          plaintiff’s fall when defendant sold its interest in the mall to a third party.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Madison County, No. 11-L-245; the
Review                     Hon. David A. Hylla, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 John Dale Stobbs and Andrew K. Carruthers, both of Stobbs, Sinclair &
Appeal                     Carruthers, Ltd., of Alton, for appellant.

                           Scott D. Bjorseth and David A. Schott, both of Hoagland, Fitzgerald &
                           Pranaitis, of Alton, for appellee.


Panel                      JUSTICE WELCH delivered the judgment of the court, with opinion.
                           Presiding Justice Spomer concurred in the judgment and opinion.
                           Justice Goldenhersh dissented, with opinion.




                                              OPINION

¶1          The plaintiff, Mercedena Burns, appeals from the order of the circuit court of Madison
        County dismissing her three-count complaint filed against the defendant, Simon Properties
        Group, LLP, also known as Simon Property Group (Illinois), L.P., after she fell in a pothole
        and sustained injuries in a parking lot at the Alton Square Mall (mall). For the reasons which
        follow, we affirm the decision of the circuit court.
¶2          On January 1, 2011, the plaintiff was a customer at the mall. After making some
        purchases, she returned to her car, which was parked in the east parking lot in front of the
        Macy’s store. On her way to the car, she tripped and fell in a pothole near the rear of her car.
        The plaintiff broke two bones in her left leg and incurred medical bills in excess of $90,000.
        The defendant owned the mall and was responsible for parking lot maintenance from 1996
        until 2007 when it sold its ownership interest to Coyote Alton Mall, L.P. (Coyote).
¶3          On April 19, 2012, the plaintiff filed an amended complaint against the defendant
        asserting that she was injured by a public nuisance. Count I alleged creation and maintenance
        of a nuisance; count II alleged negligent creation of a nuisance; count III alleged wilful and
        wanton conduct in creation of a nuisance. The plaintiff’s complaint alleged that from 1996
        until 2007, the defendant allowed the mall parking lot to fall into disrepair due to lack of
        maintenance, that the defendant had a duty to maintain the mall parking lot in a reasonably
        safe condition for use by the customers of the stores located in the mall, and that the
        condition of the parking lot continued unabated until after the plaintiff was injured. The
        complaint further alleged that the condition of the mall parking lot posed an unreasonable
        risk to the safety of the mall customers and that the defendant knew of the hazardous
        condition of the parking lot in 2007 when it conveyed the property to Coyote and knew, or
        was reckless in not knowing, that Coyote had borrowed heavily and did not have the capital
        to renovate the parking lot (Coyote went into receivership in 2011). According to the
        plaintiff, the defendant was aware that the parking lot was hazardous because there were
        numerous falls by store patrons during the period when the defendant owned the mall.

                                                  -2-
     Therefore, the plaintiff concluded that the condition of the east parking lot and the danger
     it created constituted a public nuisance and this public nuisance was created by the
     defendant’s failure to maintain the parking lot.
¶4       On May 11, 2012, the defendant filed a motion to dismiss the plaintiff’s complaint under
     section 2-615 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West
     2010)) and under section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2010)). In
     the motion, the defendant argued that the plaintiff had failed to allege sufficient facts to
     demonstrate the existence of a public right, as required to allege a cause of action for public
     nuisance, and that the right alleged by the plaintiff, the right not to be negligently injured,
     was instead a private right. Alternatively, the defendant argued that it did not owe a duty to
     the plaintiff because it never owned the parking lot where the plaintiff fell and it did not
     possess, occupy, or control the parking lot during the time that the plaintiff fell. Attached to
     the motion to dismiss was the affidavit of Paul Grossman, senior litigation paralegal for the
     defendant, which admitted that in 2007, the defendant maintained the parking lots
     surrounding and belonging to the mall. The affidavit further set forth that at no time did the
     defendant own the parcel of land occupied by Macy’s or the east parking lot on which the
     plaintiff fell. The affidavit stated that since August 1, 2007, the defendant “has not
     maintained, owned, possessed, or controlled the parking lots surrounding and belonging to
     [the mall], including but not limited to, the parking lot alleged in Plaintiff’s complaint.” The
     defendant also attached to its motion information from Madison County showing that
     Macy’s/May Properties was the owner of the parking lot where the plaintiff fell. Ultimately,
     the trial court entered an order dismissing the plaintiff’s complaint pursuant to section 2-615
     of the Code, finding that the plaintiff did not state a cause of action for public nuisance. The
     plaintiff appeals.
¶5       In reviewing the dismissal of a complaint under either section 2-615 of the Code (735
     ILCS 5/2-615 (West 2010)) or section 2-619 of the Code (735 ILCS 5/2-619 (West 2010)),
     we apply a de novo standard of review. Dopkeen v. Whitaker, 399 Ill. App. 3d 682, 684
     (2010); R-Five, Inc. v. Shadeco, Inc., 305 Ill. App. 3d 635, 639 (1999). A motion to dismiss
     under section 2-615 tests the legal sufficiency of the complaint, whereas a motion to dismiss
     under section 2-619 admits the legal sufficiency of the complaint but asserts an affirmative
     defense outside the complaint that serves to defeat the cause of action. Kean v. Wal-Mart
     Stores, Inc., 235 Ill. 2d 351, 361 (2009). Under either section, we are to accept all well-
     pleaded facts as true and draw all reasonable inferences from the facts in favor of the
     nonmoving party. Dopkeen, 399 Ill. App. 3d at 684.
¶6       A public nuisance is defined as the “doing of or the failure to do something that
     injuriously affects the safety, health or morals of the public, or works some substantial
     annoyance, inconvenience or injury to the public.” (Internal quotation marks omitted.) City
     of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 370 (2004). In order for there to be a
     sufficient pleading in a public nuisance cause of action, the pleading must “allege a right
     common to the general public, the transgression of that right by the defendant, and resulting
     injury.” Id. at 369. More specifically, the pleading must allege facts in support of the
     following four distinct elements of a public nuisance claim: (1) the existence of a public
     right; (2) a substantial and unreasonable interference with that right by the defendant; (3)

                                               -3-
       proximate cause; and (4) injury. Id.
¶7         The first element that must be alleged is the existence of a right common to the general
       public. Id. at 370. The supreme court has defined “public right” as follows:
           “ ‘The interference with a public right is the sine qua non of a cause of action for public
           nuisance. However, not all interferences with public rights are public nuisances. The
           nuisance must affect an interest common to the general public, must produce a common
           injury, or be dangerous or injurious to the general public, or it must be harmful to the
           public health, or prevent the public from a peaceful use of their land and the public
           streets, or there must be some direct encroachment on public property.’ ” Id. at 373
           (quoting 58 Am. Jur. 2d Nuisances § 39 (2002)).
       A public right is “ ‘collective in nature and not like the individual right that everyone has not
       to be assaulted or defamed or defrauded or negligently injured.’ ” Id. (quoting Restatement
       (Second) of Torts § 821B cmt. g (1979)). A nuisance becomes public when it occurs in a
       public place or where the public frequently congregates or where members of the public are
       likely to come within the range of its influence. 58 Am. Jur. 2d Nuisances § 30 (2010). The
       nuisance is also considered a public nuisance when it affects a place where the public has a
       legal right to go, such as a park, street, or alley, and if the conduct or condition necessarily
       annoys, offends, or injures those who come within the scope of its influence. Id. However,
       the nuisance is not a public one if it occurs in a place of business to which an invitee has no
       public right to go. Id.
¶8         In the instant case, the plaintiff identified the following as the public right in her public
       nuisance claim: the right to have a reasonably safe means of ingress and egress to the mall
       stores over the parking lot. In response, the defendant argues that the plaintiff was asserting
       a right not to be negligently injured, which is a private right and not actionable as a public
       nuisance.
¶9         The trial court relied on cases from foreign jurisdictions, a Connecticut case, Wrighten
       v. Rapid Car Wash, Inc., No. 5001056 (Conn. Super. Ct. Nov. 6, 2007) (unpublished
       opinion), and a federal district case from the eastern district of Pennsylvania, Ricchiuti v. The
       Home Depot Inc., 412 F. Supp. 2d 456 (E.D. Pa. 2005), as support for the dismissal of the
       plaintiff’s complaint for public nuisance. In Ricchiuti, 412 F. Supp. 2d at 460, the
       Pennsylvania court concluded that a pothole in a parking lot used by the public was not
       considered a public nuisance. The court reasoned that a pothole in a parking lot affected a
       defined portion of the community, specifically, the users of that particular parking lot. Id.
       Accordingly, the court concluded that the pothole did not constitute a public nuisance
       because it did not affect the “ ‘community at large’ by interfering with a public way or create
       a significant hazard to the public.” Id.
¶ 10       Here, the trial court agreed with the above reasoning and determined that the plaintiff had
       no public right to be on the Macy’s parking lot and no public right to have the Macy’s
       parking lot in a reasonably safe condition. The court reasoned as follows:
           “The public, in general, are not ‘business invitees’ simply because they have been invited
           for business, the relationship is established by their physical acceptance. *** [P]ublic
           rights are generally not rescindable like business invitations. A business invitation to be

                                                 -4-
            on property can obviously be revoked like any license. Also, public rights stem from
            being part of the public and the right for people to come onto the parking lot in this case
            stems from an invitation for business by private business owners who had shops in the
            mall. There was no right to be on the property before the businesses extended the
            invitation, and there would be no right to be on the property after the businesses
            rescinded the invitation.”
       Accordingly, the court concluded that the plaintiff was on the Macy’s parking lot by
       invitation only and had no public right to be there. The court further concluded that the
       plaintiff had no public right to have the parking lot in a safe condition.
¶ 11        We agree with the reasoning of the trial court and conclude that the plaintiff was not
       exercising a right common to the public at the time that she entered the parking lot for the
       purpose of patronizing Macy’s. The deterioration of the Macy’s parking lot did not affect the
       “community at large” and instead affected a defined segment of the community, namely,
       those using the Macy’s parking lot with the intention of entering and exiting the Macy’s
       store. The plaintiff asserts that she had a right not to be negligently injured when she used
       the mall parking lot for ingress and egress to the Macy’s store. However, as stated above, a
       public right is one common to all members of the general public and is different from the
       individual right that everyone has not to be negligently injured. While members of the public
       were welcome to use the parking lot for access to the mall stores, they were not entitled to
       do so by virtue of any right common to the general public. Accordingly, we conclude that the
       plaintiff was not exercising any public right while on the Macy’s parking lot.
¶ 12        Additionally, the plaintiff argues that a cause of action for public nuisance is not
       precluded just because it occurred on privately owned land. In Chicago National League Ball
       Club, Inc. v. Thompson, 108 Ill. 2d 357, 364-66 (1985), our supreme court held that a
       nuisance that existed on Wrigley Field, which is privately owned, was a public nuisance
       because it affected the peace and tranquility of the neighborhood. Our supreme court
       specifically stated: “A private nuisance, however, that interferes with public rights can also
       constitute a public nuisance.” Id. at 365. However, we reiterate that the plaintiff was not
       exercising a right common to the public at the time that she entered the parking lot for the
       purpose of patronizing Macy’s. Therefore, we agree with the trial court’s dismissal of the
       plaintiff’s complaint under section 2-615 of the Code (735 ILCS 5/2-615 (West 2010))
       because she failed to state a cause of action for public nuisance.
¶ 13        We note that the defendant filed a combined motion to dismiss pursuant to sections 2-615
       and 2-619 in the trial court. However, the trial court dismissed the plaintiff’s complaint
       pursuant to section 2-615 and did not address the issues raised in the section 2-619 motion.
       In its brief filed with this court, the defendant argues that we can affirm the trial court’s
       dismissal on the basis of the section 2-619 motion. Specifically, the defendant argues that it
       had no duty to the plaintiff because it never owned the parking lot where the plaintiff fell and
       it did not possess, occupy, or control the parking lot during the time that the plaintiff fell. The
       defendant points to the affidavit of Paul Grossman for support. According to the affidavit,
       the defendant owned the mall and was responsible for maintaining the parking lots
       surrounding the mall in 2007; the defendant never owned the parcel of land occupied by
       Macy’s or the east parking lot on which the plaintiff fell; on August 1, 2007, the defendant

                                                  -5-
       sold its entire possessory interest, including all assets and liabilities, to Coyote; the defendant
       has not owned, controlled, operated, had possession, or had any possessory interest in the
       mall or the parking lot since the sale; Coyote took over the contractual duty to maintain the
       mall, which included the mall parking lot where the plaintiff fell on January 1, 2011; and the
       defendant has not been contractually obligated to maintain the mall or the mall parking lot
       since August 1, 2007.
¶ 14       In response, the plaintiff argues that the defendant owed a duty to patrons of the mall to
       provide reasonably safe access to the mall across the parking lot, which was provided for that
       purpose. Further, the plaintiff argues that the defendant created the public nuisance by its
       failure to maintain the mall parking lot and the subsequent conveyance of the property to
       Coyote does not insulate the defendant from liability for the plaintiff’s injuries. In support
       of the argument that the defendant had a duty to the patrons of the mall, the plaintiff cites
       Bangert v. Wal-Mart Stores, Inc., 295 Ill. App. 3d 418 (1998). In Bangert, 295 Ill. App. 3d
       at 420, the plaintiff, a customer at a Wal-Mart store, brought a negligence action against Wal-
       Mart for injuries that she had sustained when she was struck by a vehicle while walking in
       the parking lot. This court reversed the trial court’s granting of summary judgment in favor
       of Wal-Mart, finding that Wal-Mart had a duty to protect patrons of its parking lot. Id. at 424.
       This court determined that it was reasonably foreseeable that a motorist would strike a
       customer of the store in the parking lot and that Wal-Mart had a duty to maintain reasonable
       traffic and/or pedestrian control devices within its parking lot for the protection of its
       customers. Id.
¶ 15       The plaintiff further argues that the defendant cannot escape liability by arguing that it
       lacked control over the parking lot at the time of the plaintiff’s injury because control is not
       an element of a cause of action for public nuisance. In support, the plaintiff cites City of
       Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351 (2004). In Beretta U.S.A. Corp., 213 Ill. 2d
       at 355-56, the City of Chicago and Cook County brought an action for public nuisance
       against firearm manufacturers, distributors, and dealers seeking to recover expenditures for
       emergency law enforcement and emergency medical services incurred as a result of gun
       violence. One argument made by the defendants was that Illinois law did not permit liability
       to be imposed for public nuisance unless the defendant was in control of the instrumentality
       causing the injury at the time of the injury. Id. at 396. The court disagreed and concluded that
       liability in public nuisance was not necessarily precluded simply because the defendants no
       longer controlled the object that caused the injury. Id. at 403. Specifically, our supreme court
       explained the following with regard to control being an element of public nuisance:
                “Control is not a separate element of causation in nuisance cases that must be pleaded
           and proven in addition to cause in fact and legal cause. It is, rather, a relevant factor in
           both the proximate cause inquiry and in the ability of the court to fashion appropriate
           injunctive relief. When the nuisance results from a condition or conduct upon land,
           control over the land is generally a necessary prerequisite to the imposition of liability.
           [Citation.] However, when the nuisance results from the use or misuse of an object apart
           from land, or from conduct unrelated to a defendant’s use of land, lack of control of the
           instrumentality at the time of injury is not an absolute bar to liability.” (Emphasis added.)
           Id.

                                                  -6-
¶ 16        In determining whether control was a necessary element for public nuisance, the supreme
       court distinguished between a nuisance that resulted from the use or misuse of an object apart
       from land and a nuisance that resulted from a condition or conduct upon land. The present
       case involves a nuisance that resulted from a condition or conduct upon land, and therefore
       control over the land is generally a necessary prerequisite to the imposition of liability for
       public nuisance.
¶ 17        Further, the plaintiff cites section 840A of the Restatement (Second) of Torts and
       comment c as support for her position that the defendant cannot escape liability as the creator
       of the nuisance. Section 840A describes a party’s continuing liability for a public nuisance
       after transfer of the land:
            “A vendor or lessor of land upon which there is a condition involving a nuisance for
            which he would be subject to liability if he continued in possession remains subject to
            liability for the continuation of the nuisance after he transfers the land.” Restatement
            (Second) of Torts § 840A(1) (1979).
       Comment c explains a party’s continuing liability as follows:
            “If the vendor or lessor has himself created on the land a condition that results in a
            nuisance, he cannot escape liability for the continuation of the nuisance by selling or
            leasing the land to another. In these cases it frequently has been said that by transferring
            the land with the condition existing upon it he has authorized the continuation of the
            nuisance. This is usually somewhat fictitious; and a better reason is that his responsibility
            toward those outside of his land is such that he is not free to terminate his liability to
            them for the condition that he has himself caused or concealed, by passing the land itself
            on to a third person. The effect of the rule is to require vendors and lessors in order to
            avoid liability to take reasonable steps to abate existing conditions involving any
            nuisance before they transfer the land.” Restatement (Second) of Torts § 840A cmt. c
            (1979).
¶ 18        According to the Restatement, a “vendor or lessor of land” that has created a public
       nuisance on the land cannot escape liability for the continuation of the nuisance by selling
       or leasing the land to another. However, in this case, the defendant was not a vendor or lessor
       of the parking lot where the plaintiff was injured. The defendant neither owned nor leased
       the east parking lot in 2007 and had no ownership interest or control over the parking lot
       when the plaintiff was injured in 2011. Therefore, the defendant cannot be considered a
       “vendor or lessor of land” as described in section 840A of the Restatement and therefore
       cannot be held liable on the basis of public nuisance for the injuries that resulted from the
       plaintiff tripping over a pothole in the Macy’s parking lot.
¶ 19        Our conclusion is supported by Maisenbach v. Buckner, 133 Ill. App. 2d 53 (1971), a
       First District case. The defendants in Maisenbach were the former owners of private property
       that abutted a public way on which a nuisance existed. Id. at 54. The minor plaintiff suffered
       injuries when he tripped over a chain fence that surrounded a parkway area between a
       sidewalk and a street. Id. at 53. The plaintiff sued the former owners of the property abutting
       the parkway because the former owners had maintained the fence until the time they had sold
       the property. Id. However, the facts indicated that the former owners did not possess, control,


                                                  -7-
       or own either the parkway or the property abutting the parkway at the time of the injury. Id.
       at 54. In his complaint, the plaintiff alleged that the fence was a public nuisance and that the
       person who had created a nuisance on a public way which abutted the creator’s property was
       liable to individuals who were injured as a result of the nuisance even though, at the time of
       the injury, the creator did not own, possess, or control the property abutting the public way.
       Id.
¶ 20       The First District concluded that a former property owner was not liable for injuries
       which were sustained after the owner had severed all relationship with the property
       connected to an alleged nuisance. Id. at 56. The court noted that the defendant had absolutely
       no interest in the property abutting the parkway at the time that the plaintiff was injured and
       that the plaintiff had not cited any cases in which a “maintainer of a nuisance was held liable
       for damages caused after he had completely divested himself from any connection with the
       property involved.” Id. at 55. The court stated that generally in Illinois, the liability of a
       landowner for injuries occurring in connection with the property ends with the cessation of
       ownership, possession, and control of the property. Id. at 56. The court reasoned that the
       “free and unhindered alienation of real property–long the public policy of Illinois–would be
       seriously and adversely affected if property owners were to become liable for personal
       injuries which occurred long after they sold their interest to another party.” Id. Accordingly,
       the court concluded that where the landowner clearly has no right to control the property after
       he sells it to another, he cannot have any duty to third persons injured in connection with the
       property after the sale. Id.
¶ 21       In the instant case, like Maisenbach, the defendant had no ownership interest over the
       east parking lot at the time that the plaintiff was injured. Further, the defendant had no
       ownership interest over the east parking lot at the time that it was property manager of the
       mall. The defendant had contracted with Macy’s, the owner of the parking lot, to maintain
       Macy’s section of the parking lot; however, that contract terminated in 2007, when the
       defendant sold its interest in the mall to Coyote. Coyote then resumed the property
       management duties of the mall, which included maintaining the east parking lot. Therefore,
       we agree with the defendant that the trial court would not have erred if it had dismissed the
       plaintiff’s complaint alleging public nuisance pursuant to section 2-619.
¶ 22       For the foregoing reasons, the judgment of the circuit court of Madison County is hereby
       affirmed.

¶ 23      Affirmed.

¶ 24       JUSTICE GOLDENHERSH, dissenting.
¶ 25       I respectfully dissent. In order for there to be a sufficient pleading in a public nuisance
       cause of action, the pleading must “allege a right common to the general public, the
       transgression of that right by the defendant, and resulting injury.” City of Chicago v. Beretta
       U.S.A. Corp., 213 Ill. 2d 351, 369, 821 N.E.2d 1099, 1113 (2004). More specifically, the
       pleadings must allege facts in support of the following four distinct elements of a public
       nuisance claim: (1) the existence of a public right; (2) a substantial and unreasonable

                                                 -8-
       interference with that right by the defendant; (3) proximate cause; and (4) injury. Beretta
       U.S.A. Corp., 213 Ill. 2d at 369, 821 N.E.2d at 1113. The pleading requirements are not
       arduous because the concept of common law public nuisance eludes precise definition.
       Gilmore v. Stanmar, Inc., 261 Ill. App. 3d 651, 661, 633 N.E.2d 985, 993 (1994). The
       allegations necessary to plead a public nuisance may be based partly on allegations of
       negligence. Gilmore, 261 Ill. App. 3d at 661, 633 N.E.2d at 993. Whether a public nuisance
       exists depends on the facts of each case and is a question for the trier of fact. Gilmore, 261
       Ill. App. 3d at 661, 633 N.E.2d at 993.
¶ 26        With regard to the first element, in order to state a claim for public nuisance, the plaintiff
       must allege the existence of a right common to the general public, which includes the rights
       of public health, safety, peace, comfort, and convenience. Beretta U.S.A. Corp., 213 Ill. 2d
       at 370-71, 821 N.E.2d at 1114 (citing Restatement (Second) of Torts § 821B(2)(a) (1979)).
       In her amended complaint, plaintiff alleged that during the period from 1996 to 2007, when
       defendant owned, operated, and controlled the mall, it had a duty to maintain the mall and
       the surrounding parking lots in a reasonably safe condition for use by customers of the stores
       located in the mall to enter or leave the stores. The amended complaint also alleged that
       “[t]he public were expected and anticipated to use the parking lot as a means to enter or exit
       the stores” and that defendant “knew at all times material hereto that the condition of the east
       parking lot was a danger and hazard to the safety of members of the public.”
¶ 27        With regard to the second element, plaintiff alleged: “The condition of the surface of the
       east parking lot and the danger created a public nuisance. It was foreseeable the condition
       could cause injury to members of the public.” Plaintiff set forth that defendant was on notice
       due to numerous falls by patrons of the mall during the period of 1996 to 2007 and also when
       it conveyed the mall to Coyote in 2007. Plaintiff also alleged defendant knew Coyote was
       “highly borrowed, without sufficient capital to renovate the east parking lot.” With regard
       to the third and fourth elements, plaintiff alleged that as a direct and proximate result of the
       public nuisance, plaintiff tripped and fell in a pothole and sustained damages as a result.
¶ 28        The trial court dismissed plaintiff’s complaint pursuant to section 2-615, finding that
       plaintiff’s allegations did not state a claim for public nuisance. The trial court ruled as a
       matter of law that the lot is not public, but rather private because “[p]laintiff had no right to
       be in this parking lot independent of the business invitation and the permission to be on it
       was revocable. While this parking lot may be attached to public roads it is distinct from them
       and could be closed to the public by the owner.” However, taking the allegations in the
       complaint as true, which we are required to do, the trial court was premature in finding that
       there was no public nuisance stated in the complaint. Defendant presented no affidavits in
       support of its assertion that the mall parking lot was not a public place. The trial court was
       premature in making this determination, and plaintiff was not allowed to adequately develop
       her theory of the case.
¶ 29        In Bangert v. Wal-Mart Stores, Inc., 295 Ill. App. 3d 418, 695 N.E.2d 56 (1998), this
       court reversed the trial court’s granting of summary judgment in favor of Wal-Mart, finding
       that Wal-Mart had a duty to protect patrons on its parking lot:
                “In the case at bar it was reasonably foreseeable that a motorist would strike a


                                                  -9-
            customer/pedestrian. Wal-Mart invited customers into its store without providing any
            traffic/pedestrian control within its parking area. Wal-Mart had reason to expect that the
            free movement of vehicles and pedestrians would result in injury. Minor precautionary
            measures may have prevented this accident.” Bangert, 295 Ill. App. 3d at 424, 695
            N.E.2d at 59.
       The public has a right to be protected on the parking lots which provide access to the stores
       in which they shop.
¶ 30        Moreover, a public nuisance can occur on privately owned property. For example, in
       Chicago National League Ball Club, Inc. v. Thompson, 108 Ill. 2d 357, 483 N.E.2d 1245
       (1985), our supreme court held that a nuisance that existed on Wrigley Field, which is
       privately owned, was a public nuisance because it affected the peace and tranquility of the
       neighborhood. Our supreme court specifically stated: “A private nuisance, however, that
       interferes with public rights can also constitute a public nuisance.” Chicago National League
       Ball Club, Inc., 108 Ill. 2d at 365, 483 N.E.2d at 1249.
¶ 31        In the instant case, plaintiff contends that the parking lot where she fell was littered with
       potholes and uneven surfaces and had not been maintained and that its condition constituted
       a public nuisance. The trial court’s reason for dismissing the complaint that plaintiff was a
       business invitee whose invitation could be revoked at any time was not supported by any
       Illinois case law. The court relied on cases from foreign jurisdictions, a Connecticut case,
       Wrighten v. Rapid Car Wash, Inc., No. 5001056 (Conn. Super. Ct. Nov. 6, 2007)
       (unpublished opinion), and a federal district case from the eastern district of Pennsylvania,
       Ricchiuti v. The Home Depot Inc., 412 F. Supp. 2d 456 (E.D. Pa. 2005). Defendant has failed
       to cite any Illinois case which holds a pothole in a private lot can never constitute a public
       nuisance. I disagree with the trial court’s analysis, particularly its reliance on cases from
       foreign jurisdictions in support of its conclusion, that a pothole in a private lot can never
       constitute a public nuisance. Such a hard and fast ruling is contrary to our state’s policy to
       protect patrons from dangerous conditions on parking lots. See, i.e., Ward v. K mart Corp.,
       136 Ill. 2d 132, 554 N.E.2d 223 (1990).
¶ 32        Here, plaintiff pleaded sufficient facts required in a cause of action based upon public
       nuisance, specifically a right of the public and a corresponding duty on the owner or occupier
       of the land to have a reasonably safe means of ingress and egress, a violation of that right
       through the creation of conditions posing an unreasonable risk of harm to the public required
       to use the lot in order to access stores in the mall, and injury and damages proximately
       resulting from the nuisance. Moreover, even though defendant sold its interest in 2007, it was
       not necessarily relieved of its duty.
¶ 33        Defendant asserts that plaintiff’s complaint fails to state a cause of action because at the
       time of plaintiff’s alleged fall, defendant had completely divested itself from ownership and
       control over the mall and the parking lot. However, “[a] vendor or lessor of land upon which
       there is a condition involving a nuisance for which he would be subject to liability if he
       continued in possession remains subject to liability for continuation of the nuisance after he
       transfers the land.” Restatement (Second) of Torts § 840A(1) (1979). Comment c to section
       840A of the Restatement specifically states as follows:


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            “If the vendor or lessor has himself created on the land a condition that results in a
            nuisance, he cannot escape liability for the continuation of the nuisance by selling or
            leasing the land to another. In these cases it frequently has been said that by transferring
            the land with the condition existing upon it he has authorized the continuation of the
            nuisance. This is usually somewhat fictitious; and a better reason is that his responsibility
            toward those outside of his land is such that he is not free to terminate his liability to
            them for the condition that he has himself caused or concealed, by passing the land itself
            on to a third person. The effect of the rule is to require vendors and lessors in order to
            avoid liability to take reasonable steps to abate existing conditions involving any
            nuisance before they transfer the land.” Restatement (Second) of Torts § 840A cmt. c
            (1979).
       “[L]iability in public nuisance is not necessarily precluded simply because defendants no
       longer control the objects.” Beretta U.S.A. Corp., 213 Ill. 2d at 403, 821 N.E.2d at 1132.
¶ 34        In the instant case, plaintiff alleged defendant owned the mall and maintained the parking
       lots, including the one in question, from 1996 until 2007, during which time the pothole in
       question was created, and knew that Coyote did not have the means to rectify the parking lot
       nuisance which led to plaintiff’s injury. An affidavit submitted by defendant’s employee
       admitted defendant maintained the parking lots surrounding the mall in 2007. While
       defendant did not own the parking lot, it owned the mall where plaintiff shopped prior to her
       fall and was responsible for maintenance of the parking lot until 2007. Even though someone
       else may also be at fault, defendant is not necessarily absolved of its own liability. Plaintiff’s
       theory is that defendant’s lack of maintenance during its ownership of the mall and control
       of the parking lot in question created the condition that led to plaintiff’s injury.
¶ 35        Accepting as true all well-pleaded facts and drawing all reasonable inferences from the
       facts in favor of the nonmoving party, whether the parking lot constituted a public nuisance
       is a question of fact that should not have been resolved by a motion to dismiss. Plaintiff
       should have been allowed the opportunity to conduct discovery and submit evidence to
       support her public nuisance theory, and the trial court improperly ruled as a matter of law that
       the pothole did not constitute a public nuisance.
¶ 36        For the foregoing reasons, I would reverse the judgment of the circuit court and remand
       for further proceedings.




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