Do I Have to Maintain My Parkway??
The 1st Circuit Illinois Appellate court has affirmed a decision by James D. Egan (Cook County).
The defendants, Christopher and Rachel Powers, moved from California and purchased a home in Evanston, Illinois. In front of the Powers’ new home, between the public sidewalk and the street lies a grassy parkway. A stone walkway, which is owned by the City of Evanston, intersects the parkway. The plaintiff, a co-owner of a moving company hired by Powers, sustained an injury to her foot while on the walkway. The plaintiff sued and alleged that her injuries were the result of the Powers’ failure to maintain the walkway in a safe condition. Defendant's filed a motion for summary judgment arguing that they owed no duty as the parkway was owned by the City of Evanston. The trial court granted the Powers’ motion. The plaintiff appealed. Gilmore v. Powers, 2010 WL 32219804 (Ill. App. Ct. 2010).
The appellate court affirmed. On appeal, the plaintiff acknowledged that the city-owned the walkway but argued the Powers’ appropriated the walkway for their own use by mowing and exclusively walking over it. The court found that, although a private landowner generally owns no duty to ensure the safe condition of abutting public land, a landowner may be liable for injury by affirmatively appropriating public land such as by blocking the land or parking on, especially if it is the sole means of ingress and egress. The court found that the plaintiff did not offer evidence of such appropriation and pointed out that the Powers recommended the moving company unload from the alley. Illinois District Court decisions have found no appropriation when landowners walk over, shovel, mow, or otherwise maintain public land.
The plaintiff also argued that two Evanston municipal ordinances required homeowners to maintain all public and private land in a hazardous free condition. The court held that municipal ordinances do not give rise to private tort liability. Citing Section 288 of the Second Restatement of Torts, the court noted “ordinances which require householders to keep sidewalks in repair or to remove snow and ice from them are considered to be intended only for the benefit of the municipality [not to promote public safety] and not for any individual who may suffer a fall.”
