dissenting:
I dissent.
The area of my disagreement with the majority opinion lies neither in its recitation of the relevant facts nor in its review of the applicable law. My disagreement focuses on the following paragraph from pages 4 and 5 of the slip opinion:
“In the instant case, the defendants never undertook to ‘repair’ the railroad tie in such a way that it would never again protrude onto the sidewalk. Defendant Barbara Arnold merely replaced the tie in its original location whenever she found it protruding onto the sidewalk. There is no evidence that she performed this undertaking negligently, despite the fact that the tie continued to be displaced onto the sidewalk. Defendants never discovered the reason the railroad tie kept being displaced onto the sidewalk. Although defendant Barbara Arnold speculated as to several possible causes for displacement of the railroad tie, including neighborhood children playing with or around the tie or the tenant’s car or the tenant’s boyfriend’s 18-wheeler rolling over or into the tie, she was never able to confirm any cause. Consequently, defendants never undertook to control whatever the cause might be, nor did they undertake to ‘repair’ the railroad tie in such a way that it could not be again displaced onto the sidewalk. Because the scope of defendants’ duty to exercise reasonable care is limited by the extent of defendants’ undertaking, that is, replacing the railroad tie in its original position, defendants had no further duty to remove or secure the railroad tie so that it could not move onto the sidewalk.” 253 Ill. App. 3d at 407.
Assuming that the scope of the duty is limited by the extent of the undertaking, the relevant inquiry should be: What was undertaken by the defendant? The majority concludes that “replacing the railroad tie in its original position” was the extent of the undertaking. Not only do I disagree with that conclusion, but I submit that even the defendants would disagree with that conclusion.
The tie was originally placed alongside the driveway to contain the gravel. When the tie extended onto the sidewalk and created a hazard, the defendant placed it back in its original position, not to contain the gravel in the driveway (although that would also occur), but to eliminate the hazard. The defendant’s undertaking and the extent of it could not be more clear from Mrs. Arnold’s own testimony:
“Q. And the reason you would move it off the sidewalk is because you knew that someone could potentially get hurt, am I correct?
A. Someone could. I was worried about no certain person getting hurt.
Q. And as a result of that you had to move the tie off the sidewalk back onto the yard two to three times a week?
A. That would be a good estimate, yes.”
As this excerpt reveals, even under the majority’s statement of the issue, the defendant undertook to move the tie to prevent injury.
The majority goes on to say:
“There is no evidence that she performed this undertaking negligently, despite the fact that the tie continued to be displaced onto the sidewalk.” (253 Ill. App. 3d at 407.)
I cannot agree with that conclusion either. In fact, it was the repetitive nature of the tie’s encroachment and the defendant’s repairs upon the sidewalk that led the trial court to impose liability.
Assuming that the tie was properly installed originally, it fairly quickly became apparent that something was causing it to move onto the public sidewalk. While the owner would generally have no duty to rectify this admittedly dangerous condition, as the majority correctly points out, once the duty to remedy the situation was undertaken, the owner was required to perform in a reasonably safe manner. Simply placing the tie upon the ground without securing it may have been reasonable the first time, the second and third times, and perhaps even the fourth and fifth times; but when the tie continued to extend onto the sidewalk two to three times a week over the course of the summer, it had to become obvious that some further repair was needed. Whether that additional step would have been to secure it with spikes or, as the trial judge suggested, to remove it altogether is not particularly important. Either act would have made the situation safer, and the latter suggestion, the removal, would have remedied it completely. Balancing the likelihood of injury from a railroad tie blocking a sidewalk against the cost and/or effort of properly securing it or removing it, and considering the other elements of the duty equation (see Harnischfeger Corp. v. Gleason Crane Rentals, Inc. (1991), 223 Ill. App. 3d 444, 585 N.E.2d 166), I do not find the trial court’s imposition of a duty unwarranted.
In addition, although the majority states:
“[djefendants never discovered the reason the railroad tie kept being moved onto the sidewalk” (253 Ill. App. 3d at 407),
this statement is not completely supported by the record, and more importantly, it suggests an alternative theory of recovery. From defendant’s testimony it could be inferred the tenant’s car or the tenant’s boyfriend’s 18-wheeler may have nudged the tie onto the sidewalk. If this inference is correct, then the original placement of an unsecured tie next to a driveway on a sloping lot next to a public sidewalk may have created a dangerous condition before defendant transferred possession. Section 379 of the Restatement (Second) of Torts provides:
Ҥ379. Dangerous Conditions Existing When Lessor Transfers Possession.
A lessor of land who transfers its possession in a condition which he realizes or should realize will involve unreasonable risk of physical harm to others outside of the land, is subject to the same liability for physical harm subsequently caused to them by the condition as though he had remained in possession.” (Restatement (Second) of Torts §379, at 281 (1965).)
The Restatement offers two illustrations of the principle stated in section 379:
“Illustrations:
1. A leases to B a building on which, as A knows or as a reasonably careful inspection would disclose, the rainspouts are in such bad condition that they discharge quantities of water upon the sidewalk of a highway upon which the building abuts. Six months after B has taken possession the water discharged from the rainspouts upon the highway freezes and forms ice ridges upon which C, a traveler on the highway, slips and falls, sustaining serious harm. A is subject to liability to C, irrespective of whether B has or has not covenanted to keep the building in good repair.
2. A leases to B a dwelling house. On the premises there is a back gate opening into an alley, seldom used and not necessary to ingress or egress. The gate is in such a condition that it is dangerous only when opened. Some time after B has taken possession he opens the gate. While he is doing so it falls upon C, a pedestrian passing along the public alley. A is subject to liability to C.
g. The liability stated in this Section cannot be avoided by a clause in the lease exonerating the lessor from responsibility for the condition of the land. Although such a clause may be effective as to any rights of the lessee (see §496B), it has no effect upon the liability to third persons outside of the land who are not parties to the contract or in privity with it.” Restatement (Second) of Torts §379, at 282-83 (1965).
Under either the theory of negligent repair relied upon by the trial court or the theory of the creation of a dangerous condition by the lessor before transfer that is suggested by section 379 of the Restatement, I would affirm the trial court.
Therefore, I respectfully dissent.