Newkirk v. Leslie

2022 IL App (3d) 210266-U

• Court: Appellate Court of Illinois
• Decided: April 21, 2022
• Docket: 3-21-0266
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2022 IL App (3d) 210266-U

Order filed April 21, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

MARTHA NEWKIRK, as Special ) Appeal from the Circuit Court Administrator of the Estate of WAYNE ) of the 13th Judicial Circuit, TUNTLAND, Deceased, and TOBY ) LaSalle County, Illinois, JOHNSON, as Special Administrator of the ) Estate of DAVID JOHNSON, Deceased, ) ) Plaintiffs-Appellants, ) ) Appeal Nos. 3-21-0266 v. ) 3-21-0297 ) Circuit Nos. 17-L-67 JOSEPH LESLIE, NICOLE LESLIE, ) 18-L-98 DUSTIN HICKEY, and JENNA HICKEY, ) ) Defendants ) ) Honorable (Joseph Leslie and Nicole Leslie, ) Joseph P. Hettel, Defendants-Appellees). ) Judge, Presiding. ___________________________________________________________________________

JUSTICE HOLDRIDGE delivered the judgment of the court. Justices McDade and Schmidt concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: The circuit court did not err as a matter of law when it granted the motion for summary judgment.

¶2 Martha Newkirk, as special administrator of the estate of her father, Wayne Tuntland, and Toby Johnson, as special administer of the estate of his husband, David Johnson, both filed

complaints against Joseph Leslie, Nicole Leslie, Dustin Hickey, and Jenna Hickey founded in

negligence. The matters were consolidated. The Leslies filed a motion for summary judgment

against both Martha and Toby’s claims, which the circuit court granted. The court made a finding

pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), and this appeal followed.

¶3 I. BACKGROUND

¶4 During the late afternoon on February 28, 2017, a tornado traveled through Ottawa, Illinois.

The National Weather Service rated the tornado on the Enhanced Fujita Scale as an EF-3 and noted

that it had a path length of 11.5 miles, maximum width of 800 yards, and estimated peak winds of

144 miles per hour. The National Weather Service, February 28, 2017; Tornado Event,

https://www.weather.gov/lot/2017Feb28_tornadoes (last visited Apr. 12, 2022). The National

Weather Service summarized the event:

“The first area of significant damage in the EF2 range was in the area around

the La Salle County Nursing Home and La Salle County Highway Department,

with lighter damage upstream from this location. The tornado continued into

Naplate and produced widespread EF2 damage to numerous homes. EF3 damage

also was identified in two locations. The first was where a minivan was thrown

about 30 yards and a home was lifted off its foundation and left with only its interior

walls intact. The second was at the Pilkington Glass plant where one section of the

factory was completely destroyed. The tornado then crossed the Illinois River and

moved through the south side of Ottawa, producing an 800 yard wide path of EF1

damage to trees and homes. The fatalities in Ottawa occurred from a tree falling

onto two men who were working outside. The tornado then crossed the Illinois

2 River again and continued to produce EF1 and EF0 damage as it exited Ottawa,

finally dissipating in the area northwest of Marseilles.” Id.

¶5 Wayne and David were the two individuals who died when several branches from a tree

fell on them. They were outside on Wayne’s property when branches from a hackberry tree next

door on the Leslies’ property fell on them. The Leslies purchased their home from the Hickeys just

a month and a half prior to the tornado on January 13, 2017. Martha and Toby brought the instant

actions founded in negligence against the Leslies, alleging that they were negligent in maintaining

and monitoring the tree. They also filed the same claims against the Hickeys and added an

allegation that the Hickeys failed to warn the Leslies of the condition when selling the property.

¶6 The Leslies denied liability and asserted affirmative defenses in the alternative. First, they

argued that harm was the result of an act of God. Second, they argued contributory negligence in

that the decedents failed to keep a proper lookout, failed to watch where they were walking, were

outside when they knew or should have known it was unsafe to do so despite the visible and audible

warnings of a tornado, and they were otherwise careless and negligent. The Leslies and the Hickeys

filed countercomplaints against each other for contribution.

¶7 The Leslies subsequently filed a motion for summary judgment and raised four arguments:

(1) the tornado was an act of God; (2) the tree was a condition, not a cause; (3) they had no notice

of any deficiencies on their property; and (4) they owed no duty of care because the likelihood of

injury and the foreseeability of injury were low. The Leslies attached the report from the National

Weather Service (id.) and the depositions of Toby, Martha, and the Leslies to their motion.

¶8 In Martha and Toby’s response to the Leslies’s motion for summary judgment, they argued

that the inspection report put the Leslies on notice that the tree needed to be monitored but that

they took no action from the date of the inspection and the date of the tornado to inspect the tree.

3 They attached a copy of a property inspection report that was issued on December 1, 2016, and

performed by a duly licensed real estate inspector. A section of the report provided for notes on

vegetation. The inspector noted “Tree limbs over hang [sic] the roof and should be cut back. Huge

tree in rear noted. Monitor for wood rot.” The inspector rated the vegetation as “acceptable.” The

report defined acceptable as “[f]unctional with no obvious signs of defect.” The other possible

rating options were “not present,” “not inspected,” “marginal,” and “defective.” Also attached to

the response were the Leslies’s depositions. Of particular relevance, Nicole testified that she did

not take any action with the subject tree after the property inspection because the inspector rated

the tree “acceptable.” Joseph was the only one living at the house at the time of the tornado as

Nicole stayed in Bloomington with her daughter until the school year ended. Joseph testified that

he understood the inspector’s note that he should watch the subject tree for rot and provided that

he would be able to recognize tree rot. However, he did not observe the subject tree up close for

wood rot but stated that he could see it outside a window. Joseph stated that, prior to the tornado,

he did not observe any falling branches from the tree.

¶9 Martha and Toby also included a tree risk assessment report. They retained Mark

Duntemann, an International Society of Arboriculture board-certified master arborist, to determine

the risk associated with the tree. He visited the site on April 31, 2017, and observed that a large

portion of the crown of tree had failed and was laying on the ground and estimated that the

minimum height of the tree before the tornado was 75 feet. Duntemann opined that the tree had

significant structural issues that were visually observable from the ground that were present for

several years. He stated that the overall risk rating prior to the wind event on February 28th was

high but the wind event moved the rating to extreme. Duntemann stated that a reasonable and

prudent response to the pre-storm risk rating would have been to remove the tree. He founded this

4 opinion on the following observations: a shear crack in the trunk associated with extensive internal

decay compromised the structural integrity of the trunk, a history of past failures that exposed large

open cavities and decay columns throughout the secondary and tertiary branches, woundwood at

large secondary branches indicating poor branch unions, rams-horn features that indicated

woundwood growing into cavities, and cavity openings that made internal cavities visible. Based

on these observations, the size of the branches associated with the defects, the height of the tree,

and the presence of three residential homes within the tree’s risk zone, the pre-storm risk rating

was “high” based on a one-year time frame.

¶ 10 Following a hearing, the court found that the Leslies did not owe a duty of care. It stated:

“[B]ased on the facts I have in front of me, clearly the action—the only action that

could have been done, based on the record, would be to cut down the tree immediately

upon purchasing the home. 75-foot-trees fall in high winds, and it was close enough to the

property line to be able to fall and cause at least property damage to the neighbors. Is that

what the law requires? I don’t think so.

While the deposition testimony of Joseph and Nicole was used to argue that they

were aware from the inspection report that they should inspect the tree for rot, there was

nothing in the report that gave them knowledge that there was rot. In fact, the tree was

marked acceptable. I think a fair reading of that is, you have a big tree in your backyard,

and you should inspect it for rot because rot could cause branches to fall and cause injury.

In this particular case, it was only 45 days after they moved in that injury was

caused. So I can find that they had no duty to inspect that tree before this tornado came

along. Having no duty to inspect the tree before the tornado came along, they did not breach

a duty. And if they did not breach a duty, they cannot be liable for the damages.”

5 Therefore, the court granted the motion for summary judgment. The Leslies asked the court for a

Rule 304(a) finding, which it also granted, finding that there was no just reason for delaying either

enforcement or appeal or both. Martha and Toby appeal.

¶ 11 II. ANALYSIS

¶ 12 On appeal, Martha and Toby argue that the court erred when it granted summary judgment

in the Leslies’s favor. Summary judgment is appropriate only if “the pleadings, depositions, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue of

material fact and that the moving party is entitled to a judgment as a matter of law.” Jackiewicz v.

Village of Bolingbrook, 2020 IL App (3d) 180346, ¶ 22. A plaintiff is not required to prove his

case to survive a motion for summary judgment, but rather, he must present a factual basis that

would arguably entitle him to judgment. Daniels v. Corrigan, 382 Ill. App. 3d 66, 70 (2008).

However, “the court should grant summary judgment only if the movant’s right to a judgment is

clear and free from doubt.” Andrews v. Metropolitan Water Reclamation District of Greater

Chicago, 2019 IL 124283, ¶ 20. On review, we must determine whether a genuine issue of material

fact existed that should have precluded dismissal of the case, or absent an issue of fact, whether

summary judgment was proper as a matter of law. Id. We review a circuit court’s entry of summary

judgment de novo (Enbridge Energy, Limited Partnership v. Village of Romeoville, 2020 IL App

(3d) 180060, ¶ 69), and we may affirm the granting of summary judgment on any factual basis

supported by the record. Harlin v. Sears Roebuck & Co., 369 Ill. App. 3d 27, 32 (2006).

¶ 13 Martha and Toby’s claims were founded in negligence. To establish a cause of action for

negligence, they were required to establish the Leslies owed a duty of care, the Leslies breached

that duty, and an injury proximately caused by the breach. See C.H. v. Pla-Fit Franchise, LLC,

2017 IL App (3d) 160378, ¶ 16. The court held that the Leslies did not owe a duty of care. Whether

6 a duty of care exists is a question of law to be determined by the court, and thus, may be determined

on a motion for summary judgment. Curatola v. Village of Niles, 154 Ill. 2d 201, 207 (1993).

¶ 14 In determining whether a duty exists, well established case law provides the consideration

of the following four factors: (1) foreseeability of injury, (2) likelihood of injury, (3) magnitude of

the burden on the defendant to guard against the injury, and (4) consequences of placing a burden

on the defendant. Smith v. Purple Frog, Inc., 2019 IL App (3d) 180132, ¶ 21. Generally, we

balance the foreseeability and likelihood of harm against the burdens and consequences of

imposing a duty on the defendant for the benefit of the plaintiff. Hutchings v. Bauer, 149 Ill. 2d

568, 571 (1992). The weight accorded to these factors depends on the circumstances of a given

case. Bruns v. City of Centralia, 2014 IL 116998, ¶ 14.

¶ 15 The first two factors, the foreseeability and likelihood of injury, do not lend toward

imposing a duty. Martha and Toby argue that it is clear that the Leslies had constructive knowledge

that the tree posed a danger, thereby making the foreseeability and likelihood of injury high. They

rely on the property inspection report recommendation to monitor the tree for rot, Joseph’s

testimony that he had the ability to recognize wood rot but never looked at the tree, Duntemann’s

tree risk assessment report that described signs of wood rot, and the size of the tree.

¶ 16 We find that the Leslies did not have constructive knowledge. “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. The property inspection report provided that the tree was acceptable, which was

defined as “[f]unctional with no obvious signs of defect,” and recommended that the Leslies

monitor it for wood rot. If the inspector, a few weeks prior to the tornado, was unable to detect

qualities in the tree that would have rated it anything other than acceptable, it is unreasonable to

7 conclude that the Leslies should have reached a different conclusion. It is true that Joseph provided

that he could identify wood rot and that he did not observe the tree up close. However, he stated

that he could see the tree from his window and did not observe any fallen limbs before the tornado.

It is also unclear how Duntemann’s tree risk assessment report can support constructive knowledge

because, as noted by the Leslies, the report (1) made numerous notes of internal structural deficits

that were exposed after the tornado and (2) failed to connect how a master arborist’s observations

can stand for the proposition that two lay persons should have known the same.

¶ 17 Martha and Toby cite various cases to support their position but we find they are inapposite.

See Ortiz v. Jesus People, U.S.A., 405 Ill. App. 3d 967 (2010) (the defendant was aware that his

tree had a large branch that hung over a public walkway); Eckburg v. Presbytery of Blackhawk of

Presbyterian Church (USA), 396 Ill. App. 3d 164 (2009) (the circuit court erroneously decided

issues of fact when ruling on a section 2-619 motion to dismiss); Stackhouse, 2012 IL App (2d)

110602, ¶ 31 (the defendant knew that a tree was possibly diseased).

¶ 18 Here, the tornado was an act of God that could not have been prevented. See Hoggatt v.

Melin, 29 Ill. App. 2d 23, 31 (1961) (an act of God is an inevitable act that cannot be prevented by

human care, skill, or foresight); see also Dukich v. Illinois Workers’ Compensation Comm’n, 2017

IL App (2d) 160351WC, ¶ 42 (acts of God include lightning strikes and tornadoes). The National

Weather Service reported that prior to this tornado, “[t]here had only been one wintertime tornado

on record in LaSalle County, and that was an EF-3 on December 6, 1951[,] that caused one fatality

and one injury.” National Weather Service, February 28, 2017; Tornado Event,

https://www.weather.gov/lot/2017Feb28_tornadoes (last visited Apr. 12, 2022). The tree was

subjected to winds of 155 miles per hour. The tornado and surrounding weather conditions were

unforeseeable and unlikely based on LaSalle County’s historical weather data.

8 ¶ 19 Regarding Martha and Toby’s position that the size of the tree provided a foreseeability

and likelihood of injury, they cite no relevant authority and are essentially suggesting a strict

liability analysis, which we find inapplicable. See Traube v. Freund, 333 Ill. App. 3d 198, 202

(2002) (“[a] defendant who performs an abnormally dangerous or ultrahazardous activity is subject

to liability for harm to the person, land, or chattels of a plaintiff resulting from the activity even

though the defendant has exercised the utmost care to prevent the harm”).

¶ 20 We also find that the last two factors, the magnitude of the burden on the defendant to

guard against the injury and the consequences of placing a burden on the defendant, weigh heavily

against finding a duty in this case. The magnitude of the burden of guarding against injury would

be onerous and have harsh consequences for landowners, especially here, where the Leslies did

not have actual or constructive notice of any deficiency with the tree and the injuries occurred

during an act of God. The only remaining consideration pertains to the mere size of the tree. This

presents a similar circumstance that was considered by this court in Pageloff v. Gaumer, 365 Ill.

App. 3d 481 (2006). In that case, the plaintiff was camping on the defendants’ campground when

she stepped on a walnut and fell. Id. at 482. This court found that imposing such a burden on a

landowner would mean that landowners could not have walnut trees on campgrounds. Id. at 484.

Here, a similar burden would occur where a landowner could not have a large tree on his property.

¶ 21 Accordingly, we find that the circuit court did not err as a matter of law when it found that

the Leslies did not owe a duty and granted summary judgment in their favor.

¶ 22 III. CONCLUSION

¶ 23 For the foregoing reasons, the judgment of the circuit court of LaSalle County is affirmed.

¶ 24 Affirmed.