No. 3--04--0533
filed April 19, 2006
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2006
KELLY PAGELOFF and DALE ) Appeal from the Circuit Court
PAGELOFF, ) of the 14th Judicial Circuit,
) Whiteside County, Illinois
Plaintiffs-Appellants, )
)
v. ) No. 03--L--18
)
MAXINE GAUMER and RUFFIT )
PARK, )
) Honorable Timothy J. Slavin,
Defendants-Appellees. ) Judge, Presiding.
PRESIDING JUSTICE SCHMIDT delivered the opinion of the court:
While camping at defendants' campground, plaintiff, Kelly
Pageloff, stepped on a walnut and fell. Plaintiffs filed a
common law negligence and loss of consortium action against
defendants, Maxine Gaumer and Ruffit Park (hereinafter,
collectively Gaumer). The circuit court of Whiteside County
granted defendants' motion for summary judgment. Plaintiffs
appeal.
BACKGROUND
Like many Americans, plaintiffs apparently enjoy getting
away from their home and camping in the great outdoors. They own
their own camper. During Labor Day weekend 2001, the Pageloffs
went camping at Ruffit Park, which was owned by Maxine Gaumer.
Gaumer owned Ruffit Park for nearly 40 years and oversaw the
maintenance and operation of the campground property. The
Pageloffs had camped at Ruffit Park many times. At the time that
Kelly Pageloff called Gaumer to make a reservation for Labor Day
weekend, she requested their usual campsite.
When the Pageloffs arrived at Ruffit Park, the site they had
requested was still occupied by another camper so Gaumer offered
another site. The Pageloffs were dissatisfied with this other
site, but they chose to stay at Ruffit Park instead of returning
home. Walnut trees were adjacent to this campsite, and for the
entire weekend walnuts, as they are prone to do in late summer,
fell off the trees onto the site. What might have been a baker's
dream, turned into plaintiffs' nightmare: walnuts everywhere.
During her deposition, Kelly stated that she and Dale had been
cleaning the fallen walnuts up all weekend and that the walnuts
"were everywhere" and "everywhere you tried to walk." Falling
walnuts even damaged plaintiffs' camper. Notwithstanding the
unrelenting barrage of falling nuts, plaintiffs remained on the
campsite. The Pageloffs brought a rake with them and used it to
clean walnuts from the campsite during the entire weekend. Three
days after their arrival, while cleaning up the campsite to go
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home, Kelly stepped on a walnut and fell, suffering a rather
severe injury to her left ankle. She did not know how long the
offending nut had been on the ground.
The Pageloffs filed a two-count complaint against Gaumer and
Ruffit Park. Count I is a common law negligence claim for
Kelly's injuries and count II is a claim by Dale for loss of
consortium. Gaumer filed a motion for summary judgment in which
she argued that she did not owe Kelly a duty to clear the walnuts
from the campsite nor did she owe a duty to warn because the
risks associated with walnuts were open and obvious. Gaumer also
argued that Kelly assumed the risk of injury by choosing to camp
at Ruffit Park. The trial court granted Gaumer's motion for
summary judgment.
ANALYSIS
On appeal, the reviewing court applies a de novo standard of
review to a grant of summary judgment. General Casualty
Insurance Co. v. Lacey, 199 Ill. 2d 281, 284, 769 N.E.2d 18, 20
(2002); Majca v. Beekil, 183 Ill. 2d 407, 416, 701 N.E.2d 1084,
1088 (1998). Thus, the reviewing court, viewing the evidence in
the light most favorable to the nonmovant, must determine whether
a genuine issue of material fact exists and whether the moving
party is entitled to a judgment as a matter of law. Majca v.
Beekil, 183 Ill. 2d at 416, 701 N.E.2d at 1088.
I. Duty
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To recover damages based upon a defendant's alleged
negligence, a plaintiff must allege and prove that the defendant
owed a duty to the plaintiff, that defendant breached that duty,
and that the breach was the proximate cause of the plaintiff's
injuries. First Springfield Bank & Trust v. Galman, 188 Ill. 2d
252, 256, 720 N.E.2d 1068, 1071 (1999). Whether or not a duty of
care exists is a question of law that may be determined on a
motion for summary judgment. Curatola v. Village of Niles, 154
Ill. 2d 201, 207, 608 N.E.2d 882, 885 (1993). The operator of a
business owes his invitees a duty to exercise reasonable care to
maintain his premises in a reasonably safe condition for use by
the invitees. Ward v. K Mart Corp., 136 Ill. 2d 132, 141, 554
N.E.2d 223 (1990). It is undisputed that Gaumer owed the
Pageloffs a duty to maintain Ruffit Park in a reasonably safe
condition.
Therefore, we must determine whether Gaumer's duty to
maintain Ruffit Park in a reasonably safe condition includes a
duty to clear fallen walnuts from the Pageloffs' campsite or,
alternatively, to warn of the walnuts.
In order to determine whether a duty is owed, the courts
consider four factors: (1) the likelihood of injury; (2) the
reasonable foreseeability of such injury; (3) the magnitude of
the burden of guarding against injury; and (4) the consequences
of imposing that burden on the defendant. Bucheleres v. Chicago
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Park District, 171 Ill. 2d 435, 450, 665 N.E.2d, 826, 833 (1996).
The first two factors lend little to the imposition of a
duty here. First, the law generally considers the likelihood of
injury slight when the condition in issue is open and obvious
because it is assumed that persons encountering the potentially
dangerous condition of the land will appreciate and avoid the
risks. Bucheleres v. Chicago Park District, 171 Ill. 2d at 456,
665 N.E.2d at 836. "In contrast, if a danger is concealed or
latent, rather than open and obvious, the likelihood of injury
increases because people will not be as readily aware of such
latent danger." Bucheleres v. Chicago Park District, 171 Ill. 2d
at 456, 665 N.E.2d at 826. Plaintiffs do not argue that the
risks were latent or concealed. They were well aware of the
existence of the walnuts on the ground. The risks of stumbling
or tripping on a walnut at Ruffit Park campground is even more
open and obvious than the risk of diving head first into the
murky waters of Lake Michigan (see Bucheleres v. Chicago Park
District, 171 Ill. 2d 435, 665 N.E.2d 826). At least the hazard
is visible.
The legal concept of reasonable foreseeability of injury
arising from open and obvious conditions takes into account that
even young, unsophisticated, or immature people are generally
assumed to appreciate the risks associated with such conditions
and, therefore, exercise care for their own safety. Bucheleres
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v. Chicago Park District, 171 Ill. 2d at 456-57, 665 N.E.2d at
836. The plaintiffs are adults.
The last two factors meditate heavily against finding a duty
here. The magnitude of the burden of guarding against injury
would be beyond onerous. Imposing the burden on a landowner
would have obvious consequences. Practically speaking, you could
not have walnut trees on campgrounds. Like the snow from the sky
in winter, nuts fall from walnut trees in the late summer.
Gaumer asks us to apply the natural accumulation rule, heretofore
reserved for snow and ice. While not controlling, we find the
law in this area to be instructive.
A landowner does not have a duty to remove natural
accumulations of ice or snow from his premises. Ordman v. Dacon
Management Corp., 261 Ill. App. 3d 275, 279, 633 N.E.2d 1307,
1310 (1994). Illinois courts have consistently found that a
landowner does not have a duty to keep his or her premises
safeguarded against the potential dangers of naturally
accumulated snow and ice because it would be unreasonable to
force a landowner to expend the money and labor necessary to
constantly keep the area safe. Kellermann v. Car City Chevrolet-
Nissan, Inc., 306 Ill. App. 3d 285, 290, 713 N.E.2d 1285, 1289
(1999). In our opinion, it would be no less onerous to require a
landowner to remove all walnuts that fall from trees on his or
her property, than it would be to require removal of all natural
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accumulations of snow and ice. It is unreasonable to impose such
a duty on every landowner. Of course, defendants could cut down
all of the nut-bearing trees and pave their property. That might
make for a safer campground. Most likely one devoid of campers,
too. Gaumer did not have a duty to keep the ground free of
walnuts.
We, likewise, hold that there is no duty to warn of the
risks inherit in wooded campgrounds. Where there are trees,
there will likely be twigs, branches, nuts, or leaves on the
ground below them. A warning would only tell campers what they
already know: walnuts on the ground create an uneven walking
surface and, therefore, a potential for a trip or fall. See
Sollami v. Eaton, 201 Ill. 2d 1, 772 N.E.2d 215 (2002).
The Pageloffs claim that the walnut trees are an integral
component of the Ruffit Park commercial enterprise, that the
walnuts which fall from these trees are inseparable from the
trees and, therefore, Gaumer effectively placed the walnuts on
the ground and caused Kelly's injury. This argument, too, is
without merit. The cases cited by the Pageloffs to support this
position are clearly distinguishable. They involve foreign
substances actually placed on the land by the owner. See Wind v.
Hy-Vee Food Stores, Inc., 272 Ill. App. 3d 149, 650 N.E.2d 258
(1995) (plaintiff slipped on floor mats placed inside the store);
Donoho v. O'Connell's, Inc., 13 Ill. 2d 113, 148 N.E.2d 434
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(1958) (plaintiff slipped on an onion on the floor of the
defendant restaurant and the evidence indicated that a busboy
knocked the onion to the floor while cleaning a table); Rutzen v.
Pertile, 172 Ill. App. 3d 968, 527 N.E.2d 603 (1988) (plaintiff
injured when stepping on a rotted portion of a dock pier at the
defendant's supper club); Piper v. Moran's Enterprises, 121 Ill.
App. 3d 644, 459 N.E.2d 1382 (1984) (plaintiff injured while
standing on wooden pallets which the store had placed inside to
reach a case of pop in defendant's store). Kelly did not fall in
a restaurant, a grocery store, or a supper club; she alleges that
she fell after stepping on a walnut in a wooded campground.
Therefore, based upon our consideration of all of the
relevant factors, we conclude that Gaumer breached no duty owed
to plaintiffs.
II. Assumption of Risk
Because we have found that defendants breached no duty owed
to the plaintiffs, we need not address defendants' assumption of
the risk argument. However, we note in passing that under the
facts presented in this case, plaintiffs clearly assumed any
risks associated with the falling or fallen walnuts.
CONCLUSION
The judgment of the circuit court of Whiteside County is
affirmed.
Affirmed.
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HOLDRIDGE and O'BRIEN, JJ., concur.
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