2019 IL App (1st) 181676-U
FIFTH DIVISION Order filed: October 25, 2019
No. 1-18-1676
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
MICHAEL MARTINO, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) No. 15 L 11577 ) PNC BANK, NATIONAL ASSOCIATION, a National ) Association; ROARING FORK CAPITAL ) PARTNERS, INC., a Colorado Corporation d/b/a ) RE/MAX NORTHERN ILLINOIS; ANGEL ) AGUILAR; HOMES REALTY OF CHICAGO, INC., ) an Illinois corporation, d/b/a REMAX FIDELITY; ) ANTONIO AGUILAR; and ILLINOIS PROPERTY ) PRESERVATION & REHAB, INC., an Illinois ) corporation, ) ) Defendants, ) ) (PNC Bank, National Association; Homes Realty of ) Honorable Chicago, Inc.; and Illinois Property Preservation & ) Larry G. Axelrood, Rehab, Inc., Defendants-Appellees). ) Judge, Presiding. ______________________________________________________________________________
PRESIDING JUSTICE HOFFMAN delivered the judgment of the court. Justices Rochford and Delort concurred in the judgment.
ORDER No. 1-18-1676
¶1 Held: We affirm the orders of the trial court denying the plaintiff’s late jury demand for failure to establish good cause and finding in favor of the defendants on the plaintiff’s premises liability claims for his failure to establish that the defendants had actual or constructive knowledge of an allegedly defective or dangerous condition on the premises.
¶2 The plaintiff, Michael Martino, appeals from orders of the trial court of Cook County that
denied his late jury demand and entered judgment in favor of the defendants, PNC Bank,
National Association (PNC Bank), Homes Realty of Chicago, Inc. (Homes Realty), and Illinois
Property Preservation & Rehab, Inc. (Illinois Property), in his premises liability action arising
from injuries he sustained while viewing a foreclosed property that he maintains was either
possessed, operated, owned, leased, maintained or controlled by the defendants. For the reasons
that follow, we affirm.
¶3 According to the plaintiff’s second amended complaint, on December 11, 2014, he was
lawfully viewing the foreclosed residential property located at 2428 Oak Street, Franklin Park,
Illinois (property or premises) when he injured his foot by stepping on a rusty nail attached to a
piece of wood in the backyard of the property. The plaintiff’s 7-count second amended complaint
asserted premises-liability claims against each defendant 1. The plaintiff alleged that the
defendants had a duty to exercise “ordinary care and caution for those persons legally on said
premises and to keep the premises and walkway near the fenced in backyard in a reasonably safe
condition” and to warn of dangerous conditions. Each premises-liability count claimed that the
defendants breached their duty by the following acts or omissions: (1) allowing the dangerous
condition to exist on the walkway in the backyard; (2) failing to keep and maintain the premises
in a “proper and safe condition;” (3) permitting construction debris to remain on the premises or
be kept in such a manner as to “constitute a hazardous condition;” (4) failing to inspect the
1 The plaintiff’s original complaint included causes of action against the following defendants: PNC Bank, Roaring Fork Capital Partners, Inc., Angel Aguilar, Homes Realty, Antonio Aguilar, and Illinois Property. However, the only defendants that are still parties to this action are PNC Bank, Homes Realty, and Illinois Property.
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premises and keep it free of a “hazardous” and defective walkway; and (5) failing to warn the
plaintiff of a dangerous condition. The plaintiff also alleged that he sustained severe and
permanent injuries as a direct and proximate result of the defendants’ acts or omissions.
¶4 The following facts are taken from the pleadings and other filings of record. On May 22,
2015, the plaintiff initially filed a pro se action in federal court, requesting a jury trial. Martino v.
PNC Bank, No. 1:15-cv-04550 (N.D. Ill. 2015). The plaintiff later voluntarily dismissed his
federal complaint, and filed his original complaint in the present action on November 12, 2015,
without a jury demand. All of the defendants, with the exception of Illinois Property, filed jury
demands. On December 9, 2016, the plaintiff filed his second amended complaint, still without a
jury demand. On February 21, 2017, the case was set for a trial date of April 30, 2018.
¶5 On April 30, 2018, the morning of trial, the defendants moved for three substitutions of
judge and waived their jury demands. The plaintiff then sought leave to file his jury demand
instanter. In support of his motion, counsel for the plaintiff argued that he was “taken completely
by surprise” by the defendants’ waiver of their jury demands; that his client was deprived of the
benefit of both a faster adjudication with a bench trial and his right to a jury trial; and that he lost
a significant amount of time drafting jury instructions in preparation for trial and would not have
prepared them had he known there would have been a bench trial. The trial court denied the
plaintiff’s motion, reasoning that the plaintiff failed to show good cause for filing a late jury
demand.
¶6 The plaintiff testified that on December 11, 2014, he arrived at the property, with his
father, Frank Martino and his real estate agent, Gregorio Cirone. While walking through the
property, the plaintiff noticed that the kitchen was missing appliances and cabinets and the
upstairs bathroom was missing fixtures. When the plaintiff entered the backyard, he noticed that
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it was “overgrown” with leaves scattered throughout. He could see the ground through the leaves
in some places and he did not observe anything in the backyard that might be a safety hazard.
¶7 The plaintiff testified that he was almost at the side of the house where the cement
walkway began when he stepped on a nail protruding from a piece of wood. According to the
plaintiff, the nail was covered by leaves and he did not see it beforehand. He did not see any
other wood, nails, or debris, and did not know how long the piece of wood with the nail had been
in the backyard or how it got there.
¶8 Frank Martino testified that the backyard was overgrown and “generally messy” with
some leaves and branches throughout. According to Frank, the leaves were also on the walkway.
Frank noticed what appeared to be construction debris, including white molding and a toilet in
the garage; however, he did not see any construction debris in the backyard. Frank testified that
he heard the plaintiff scream when he stepped on the nail and saw what he described as a white
painted trim molding embedded on the bottom on the ball of the plaintiff’s shoe. Frank admitted
that he did not know from where the piece of wood with the nail came.
¶9 Cirone testified that the property had overgrown grass and leaves covering the backyard.
According to Cirone, the leaves were thick enough to cover a small piece of wood with a nail
and there were leaves underneath where the plaintiff was standing when he stepped on the nail.
However, Cirone did not recall seeing any construction debris in the backyard. Cirone testified
that he did not know how long the wood with the piece of nail has been in the backyard, nor did
he know how it had gotten there.
¶ 10 Shari Bowman, PNC Bank’s REO Asset Manager, who oversees the handling of
properties after they have gone through the foreclosure process, testified that she hired Angel
Aguilar as PNC Bank’s broker agent for the property and that she never visited the property.
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After receiving photographs and notes regarding the condition of the property, she asked Homes
Realty to conduct an exterior trash removal. However, she did not ask Homes Realty to remove
the leaves from the backyard because the photographs did not depict excessive leaves.
¶ 11 Angel Aguilar, the sole owner of Homes Realty, testified that he was assigned the
property by PNC Bank and entered into an REO listing and property management agreement
with PNC Bank. Angel was tasked with winterizing the property, changing the locks, and
making an evaluation on its value. According to Angel, in addition to these assigned tasks from
PNC Bank, he recommended that smoke detectors and railings be installed and that an interior
and exterior “trash-out” or cleaning be performed. PNC Bank approved these additional tasks.
Angel testified that he made no recommendations to clear the leaves from the backyard because
he did not think it was necessary. Angel testified that he hired Illinois Property to change the
locks and winterize the property. According to Angel, when he met Antonio Aguilar (the
president and owner of Illinois Property) on the premises for him to change the locks, he noticed
that fixtures and appliances had been removed from inside the property; however, he did not
know who had removed them. Angel also testified that he did not see the nail that the plaintiff
had stepped on, did not know how it had arrived, or how long it had been on the property. He
further testified that had he seen the nail, he would have removed it.
¶ 12 Antonio testified that Illinois Property was hired by Homes Realty to complete
maintenance work on the property. According to Antonio, Illinois Property was instructed to
change the locks, take pictures, cut the grass, sweep, mop, take out the garbage, and install
handrails and smoke detectors. Antonio testified that Illinois Property was not tasked with
inspecting the property as it does not perform such inspections. On November 22, 2014, Antonio
met Angel at the property to change the locks on the property. That same day, Antonio took
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photographs of the garbage in the garage, including what appeared to be a toilet and cabinets.
Antonio testified that he did not see anything that appeared hazardous on the property, but if he
had seen an obvious hazard, he would have put up a warning. According to Antonio, during his
second visit to the property, he completed maintenance work and cut the grass in the front yard
because there was no grass to be cut in the backyard. Antonio invoiced Homes Realty for an
“exterior trash out” with respect to the garbage in the garage. According to Antonio, he did not
complete any work in the backyard because there was “nothing to do.” He did not rake the leaves
because that was not an assignment in his work order. Lastly, Antonio testified that he did not
see anything under or on top of the leaves in the backyard.
¶ 13 Based on the evidence introduced during trial, the court entered judgment in favor of all
of the defendants and determined that the plaintiff failed to establish that the defendants had
actual or constructive notice of a dangerous condition that caused the plaintiff’s injuries.
¶ 14 The plaintiff subsequently filed a post-judgment motion pursuant to section 2-1203 of the
Code of Civil Procedure (Code) (735 ILCS 5/2-1203 (West 2014)), contesting the trial court’s
denial of his jury demand, seeking a re-trial, and arguing that the defendants’ violation of a
Franklin Park ordinance establishes prima facie negligence. The trial court denied the plaintiff’s
motion and this appeal followed.
¶ 15 On appeal, the plaintiff first argues that the trial court abused its discretion when it denied
his motion for leave to file a jury demand. We disagree.
¶ 16 Section 2-1105(a) of the Code of Civil Procedure provides in pertinent part that:
“A plaintiff desirous of a trial by jury must file a demand
therefor with the clerk at the time the action is commenced. A
defendant desirous of a trial by jury must file a demand therefor
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not later than the filing of his or her answer. Otherwise, the party
waives a jury.” 735 ILCS 5/2-1105(a) (West 2014). See also
Charles v. Gore, 248 Ill. App. 3d 441, 447 (1993).
In the present case, the plaintiff commenced his action on November 12, 2015, when he filed his
initial complaint against the defendants. However, it was not until May 2, 2018, after the
defendants withdrew their jury demands, that the plaintiff filed his motion for leave to file a jury
demand. Therefore, the plaintiff’s jury demand, which was filed more than two years after he
initiated suit against the defendants, was untimely.
¶ 17 However, Illinois Supreme Court Rule 183 leaves the decision whether to grant a party’s
late request for a jury trial to the trial court’s discretion. Ill. S. Ct. R. 183 (eff. Feb 16, 2011);
Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 353 (2007); In re Estate of Burren, 2013 IL
App (1st) 120996, ¶ 29. A party requesting a late jury demand must establish both good cause for
the delay and an absence of prejudice or inconvenience. Baldassari v. Chelsa Development
Group, Inc., 195 Ill. App. 3d 1073, 1077 (1990). The trial court’s decision whether to allow the
filing of a late jury demand will not be overturned on appeal absent an abuse of discretion.
Koehler v. Packer Group, Inc., 2016 IL App (1st) 142767, ¶ 36. The trial court is considered to
have abused its discretion when a ruling is arbitrary, fanciful, or unreasonable or when no
reasonable person would have taken the view adopted by the trial court. In re Estate of LaPlume,
2014 IL App (2d) 130945, ¶ 49.
¶ 18 Here, the plaintiff relies on Hernandez v. Power Construction Co., 73 Ill. 2d 90 (1978) to
support his argument that he had good cause for filing a late jury demand because the
defendants’ late waiver of their jury demands caused him to lose both the benefit of a speedier
adjudication and a jury trial. Moreover, he argued that there would be no prejudice or
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inconvenience to the defendants in granting his late jury demand because they were already
preparing for a jury trial. However, we find Hernandez distinguishable from this case.
¶ 19 In Hernandez, the court noted that jury trials take at least two years longer than bench
trials. Therefore, had the plaintiff in Hernandez been allowed to proceed on a bench trial as he
initially intended, he would have enjoyed the benefit of an earlier adjudication. However, the
defendant’s jury demand placed the case on a jury track, which consequently, prolonged the
duration of the litigation. Therefore, the defendant’s withdrawal of the jury demand on the
morning of trial denied the plaintiff the benefit of a speedy adjudication and the right to a jury
trial. Hernandez, 73 Ill. 2d at 96-97. Here, we have no such issue. The plaintiff has offered no
evidence other than his own, unsupported assertions that a jury trial takes longer than a bench
trial and consequently, the defendants’ last-minute withdrawal of their jury demands denied him
a speedy adjudication. This is not sufficient to establish good cause.
¶ 20 Moreover, the lack of prejudice that would result to the defendants by having a jury trial
is not sufficient, in itself, to establish good cause for granting a late jury demand. Greene v. City
of Chicago, 73 Ill. 2d 100, 107 (1978).
¶ 21 The plaintiff also relies on Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 353 (2007)
to argue that attorney neglect was another reason that he had good cause, under Rule 183, for his
late jury demand. He argues that he requested a jury trial in his pro se federal claim, and that his
attorney failed to file a jury demand when he filed the same claim in Cook County. Vision Point
does hold for the proposition that evidence of mistake, inadvertence, or neglect may be
considered in the good cause analysis (Vision Point, 226 Ill. 2d at 352); however, the record is
silent as to whether plaintiff’s counsel’s failure to file a jury demand was the result of mistake,
inadvertence or attorney neglect and not simply trial strategy. Moreover, the fact that attorney
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neglect may be present does not automatically equate to a showing of good cause as “what
constitutes good cause within this context, *** is fact-dependent and rests within the sound
discretion of the circuit court.” Id. at 353. Accordingly, we find nothing in the record to establish
that the circuit court abused its discretion when it denied the plaintiff’s motion for leave to file a
jury demand because he failed to establish good cause for his late request.
¶ 22 Next, the plaintiff contends that the circuit court’s finding that he failed to establish that
the defendants’ had actual or constructive notice of the defect on the walkway that caused his
injuries was against the manifest weight of the evidence. We disagree.
¶ 23 “Pursuant to the theory of premises liability, an owner or occupier of land *** owes a
duty of reasonable care under the circumstances to all entrants upon the premises except to
trespassers.” Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, ¶ 24. In Genaust v.
Illinois Power Co., 62 Ill. 2d 456, 468 (1976), our supreme court adopted section 343 of the
Restatement (Second) of Torts, which provides:
“A possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land if, but only if,
he (a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves an
unreasonable risk of harm to such invitees, and (b) should
expect that they will not discover or realize the danger, or will
fail to protect themselves against it, and (c) fails to exercise
reasonable care to protect them against the danger.”
Restatement (Second) of Torts § 343 (1965).
¶ 24 Therefore, “there is no liability for a landowner for dangerous or defective conditions on
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the premises in the absence of the landowner’s actual or constructive knowledge.” Tomczak v.
Planetsphere, Inc., 315 Ill. App. 3d 1033, 1038 (2000). “If the gist of a complaint is that the
landowner did not create the condition, the plaintiff must be required to establish that the
landowner knew or should have known of the defect.” Id. Generally, when asserting that a
defendant had constructive knowledge of a dangerous condition, the plaintiff “must establish that
the dangerous condition existed for a sufficient time or was so conspicuous that the defendant
should have discovered the condition through the exercise of reasonable care.” Smolek v. K.W.
Landscaping, 266 Ill. App. 3d 226, 228-29 (1994). “One will be considered to have constructive
knowledge if he receives facts that would make the dangerous condition known to any ordinary
prudent person.” Stackhouse v. Royce Realty & Management Corp., 2012 IL App (2d) 110602, ¶
30.
¶ 25 In his second amended complaint, the plaintiff alleged that the dangerous condition on
the premises was a hazardous walkway, resulting in him stepping on a rusty nail. In his brief on
appeal, the plaintiff argues that the defendants knew or should have known that a dangerous or
defective condition existed on the walkway because PNC Bank had photographs of the leaves on
the property but never requested that Illinois Property remove them and Illinois Property and
Homes Realty knew that the property underwent an interior demolition and removal of
construction debris, therefore “it was foreseeable that hidden construction debris could injure an
invitee.” He maintains that the “evidence establishes that the [wood with the nail] was in the
backyard for weeks” and therefore, the dangerous condition existed long enough to impute
constructive knowledge to the defendants. We disagree.
¶ 26 The plaintiff’s assertions are simply unsupported by the record. First, it was not
unreasonable that leaves, which presented no apparent threat of harm and that, in places, still
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revealed the ground below, were not removed from the backyard. Moreover, no one, not even the
plaintiff was able to testify as to where the nail came from, how the nail got into the backyard, or
how long the nail was in the backyard. Further, there was no evidence that anyone ever saw the
nail. The plaintiff did not see it before stepping on it, neither his father nor Cirone saw it, and
neither Angel nor Antonio saw the nail. The evidence establishes that the alleged defect on the
property was highly inconspicuous. See Smolek, 266 Ill. App. 3d at 229 (noting that where a
condition has existed for a considerable period of time, constructive notice cannot exist where
the dangerous condition is so well concealed that it is unlikely to be discovered through the
exercise of reasonable care); see also Burke v. Grillo, 227 Ill. App. 3d 9, 19 (1992). We conclude
that, even if the rusty nail in the backyard existed for weeks prior to the accident, it was so
inconspicuous that the defendants cannot be charged with knowledge of its existence. Therefore,
we find that the circuit court’s finding that the plaintiff failed to establish that the defendants’
had actual or constructive notice of the rusty nail was not against the manifest weight of the
evidence.
¶ 27 The plaintiff also argues that even if he failed to establish that the defendants knew or
should have known of the defect on their premises, judgment in the defendants’ favor was
improper because he was not required to prove that the defendants had notice of the defect. We
disagree.
¶ 28 This court, in Tomczak, 315 Ill. App. 3d at 1038, stated that “[i]f the gist of a complaint is
that the landowner did not create the condition, the plaintiff must be required to establish that the
landowner knew or should have known of the defect.” See also Reed v. Wal-Mart Stores, Inc.,
298 Ill. App. 3d 712, 715 (1998). Therefore, if the defendants caused the defect, the plaintiff
need not show that they had knowledge of the defect. In this case, however, there is no evidence
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as to how the nail got into the backyard or who caused it to be there. The record reflects that the
nail was in the backyard, but evidence of causation is wholly absent and the plaintiff’s
speculations are insufficient to establish causation on the part of the defendants. Thacker v. UNR
Industries, Inc., 151 Ill. 2d 343, 354 (1992). Because the plaintiff has failed to point to any
evidence establishing that the defendants’ conduct created the defect on the walkway in the
backyard (the rusty nail), he was required to show that the defendants’ had actual or constructive
notice.
¶ 29 Having found that the plaintiff failed to present evidence establishing that the defendants
knew or should have known that there was a dangerous condition on the pathway in the
backyard, we find that the trial court’s ruling in favor of the defendants on the plaintiff’s
premises liability claims was not against the manifest weight of the evidence. In so holding, we
need not reach the plaintiff’s arguments regarding whether the defendants breached their duty of
care and whether the breach proximately caused his injuries.
¶ 30 Lastly, we address the plaintiff’s final argument, that the defendants’ violation of the
Franklin Park ordinance establishes prima facie negligence.
¶ 31 We note that the plaintiff raised this argument for the first time in a post-trial motion and
it is therefore, forfeited on appeal. Caywood v. Gossett, 382 Ill. App. 3d 124, 134 (2008).
¶ 32 For the foregoing reasons, we affirm the orders of the trial court denying the plaintiff’s
late jury demand for failure to establish good cause and finding in favor of the defendants on the
plaintiff’s premises liability claims for his failure to establish that the defendants had actual or
constructive knowledge of an allegedly defective or dangerous condition on the premises.
¶ 33 Affirmed.
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