NO. 5-95-0692
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
GLENN H. WHITTAKER, JR., ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Madison County.
)
v. ) No. 94-L-851
KEITH HONEGGER and JOY LYNN HONEGGER, ) Honorable
) A. A. Matoesian,
Defendants-Appellees. ) Judge, presiding.
_________________________________________________________________
JUSTICE MAAG delivered the opinion of the court:
Plaintiff, Glenn Whittaker, appeals from a Madison County
circuit court order granting defendants' summary judgment motion.
Plaintiff filed this action against defendants, Keith Honegger
and Joy Lynn Honegger, seeking recovery for personal injuries
sustained when he encountered a patch of loose gravel on the paved
public highway in front of defendants' gravel driveway and lost
control of his motorcycle. Defendants filed a motion for summary
judgment, asserting that as landowners of property adjoining a
public highway, defendants owed no duty to motorists to clean or
maintain the portion of highway in front of their property, regard-
less of whether gravel had migrated from their property onto the
roadway. The trial court granted defendants' motion. The court
specifically found that no legal duty existed on the part of the
homeowners. Plaintiff appeals.
We will begin by reviewing the facts before us.
On August 27, 1993, plaintiff was riding his motorcycle down
Old Troy Road. As plaintiff approached a curve in the highway near
the entrance to defendants' driveway, he lost control of his
motorcycle when he encountered a patch of gravel accumulated on the
paved road. Plaintiff crashed and sustained injuries. The gravel
allegedly was tracked onto the highway over time by vehicles
leaving defendants' driveway. Plaintiff alleged that defendants
were negligent and breached the duty of ordinary care owed to
plaintiff by failing to prevent or remedy a hazardous accumulation
of gravel on the roadway. The record fails to disclose how much
gravel was present on the highway at the time of the accident.
Plaintiff contends on appeal that the trial court erred in
ruling that the defendant homeowners owed plaintiff no duty of
care. He argues that because defendants permitted an artificial
condition from their property to pose an unreasonable and fore-
seeable risk to others on the highway, defendants owed a duty to
highway users to remove the gravel.
Defendants argue that, even assuming that gravel had migrated
onto the roadway and caused plaintiff's injuries, they nevertheless
owed no duty to keep the public highway clean. Defendants maintain
that they lacked a sufficient relationship to motorists to impose
a duty of care; that the risk of injury to highway travelers was
not foreseeable; and that the imposition of a duty on owners of
land adjacent to public highways to keep their gravel off the road
would constitute a "disastrous" burden.
Summary judgment should be granted only when the pleadings,
depositions, affidavits, and admissions on file show that there is
no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. Hanks v. Mount Prospect
Park District, 244 Ill. App. 3d 212, 614 N.E.2d 135 (1993). The
court must consider all the evidence before it strictly against the
movant for summary judgment and liberally in favor of the non-
movant. Colvin v. Hobart Brothers, 156 Ill. 2d 166, 620 N.E.2d 375
(1993). In a negligence action, the determination of whether a
duty exists is an issue of law to be determined by the court. Abdo
v. Trek Transportation Co., 221 Ill. App. 3d 493, 582 N.E.2d 247
(1991); Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.
2d 507, 513 N.E.2d 387 (1987). Absent the existence of a duty, a
defendant is entitled to summary judgment. Hanks, 244 Ill. App. 3d
212, 614 N.E.2d 135; Crutchfield v. Yellow Cab Co., 189 Ill. App.
3d 1091, 545 N.E.2d 961 (1989).
Our supreme court has on several occasions addressed the
question of the duty owed by a property owner to those using the
adjacent highway. Abdo, 221 Ill. App. 3d at 496, 582 N.E.2d at
250; Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535,
540-41, 582 N.E.2d 108, 111 (1991); Ziemba v. Mierzwa, 142 Ill. 2d
42, 45, 566 N.E.2d 1365 (1991). In those instances, the court
initially focused on the reasonable foreseeability of the injury in
determining whether to impose a duty on the property owner. Abdo,
221 Ill. App. 3d at 496, 582 N.E.2d at 250; Ziemba, 142 Ill. 2d at
49, 566 N.E.2d at 1367. Accordingly, our inquiry also begins by
focusing on the reasonable foreseeability of a highway traveler
losing control of his motorcycle when coming in contact with gravel
strewn over the paved road.
In considering a landowner's duty toward travelers on adjacent
roadways, our analysis must begin by looking to the Restatement
(Second) of Torts (1965). Section 368 provides:
"A possessor of land who creates or permits to remain
thereon an excavation or other artificial condition so
near an existing highway that he realizes or should
realize that it involves an unreasonable risk to others
accidentally brought into contact with such condition
while traveling with reasonable care upon the highway, is
subject to liability for physical harm thereby caused to
persons who
(a) are travelling on the highway, or
(b) foreseeably deviate from it in the ordinary
course of travel." Restatement (Second) of
Torts §368, at 268 (1965).
As our supreme court acknowledged in Ziemba, "Section 368
presents the well-established common law rule that a landowner's
only duty towards travelers on an adjacent highway is to keep his
land free from conditions which are unreasonably dangerous to such
travelers who may come into contact with the condition." Ziemba,
142 Ill. 2d at 48-49, 566 N.E.2d at 1367.
In this case, defendants constructed a gravel driveway on
their property adjoining the highway. Defendants do not dispute
that the gravel, an artificial condition, migrated off their
property and onto the paved highway as a result of vehicles pulling
in and out of the driveway. Plaintiff alleges that he came into
contact with this artificial condition, which caused him to lose
control of his vehicle and suffer injuries. Defendants' conten-
tion, that it was not reasonably foreseeable that the gravel
scattered on the highway might cause an accident, is unpersuasive.
"Foreseeability of harm, in connection with a duty, is not a
magical concept that ignores common sense." St. Paul Insurance Co.
of Illinois v. Estate of Venute, 275 Ill. App. 3d 432, 436, 656
N.E.2d 113, 117 (1995). Common sense tells us that the existence
of loose gravel on a paved highway may interfere with a passing
motorist's ability to safely control his or her vehicle, especially
when, as in the instant case, highway travelers must necessarily
apply their brakes to negotiate the curving road ahead. The risk
posed by the artificial condition arguably increases for those
travelers who, like the plaintiff, encounter the loose gravel while
operating a motorcycle.
Defendants' reliance on Ziemba for the proposition that no
duty is owed by the landowner when the traveler does not stray from
the road and make contact with defendants' property is misguided.
To suggest, as defendants do here, that a landowner may face
liability if a motorist encounters an unreasonably dangerous
artificial condition off the edge of the highway on the owner's
property, but not if the motorist makes contact with the owner's
artificial condition after it has actually crept onto the highway
itself, is illogical.
We believe that the principles applicable to snow and ice
cases are helpful in understanding the matter at issue. Under the
"natural accumulation rule," a landowner in Illinois is generally
not liable for injuries when the slip and fall occurred on a
surface where the snow and ice accumulation was natural and
unaggravated by the landowner. However, the owner may indeed be
liable if the ice accumulated because the owner either aggravated
a natural condition or engaged in conduct which created a new,
unnatural or artificial condition. Endsley v. Harrisburg Medical
Center, 209 Ill. App. 3d 908, 568 N.E.2d 470 (1991); Harkins v.
System Parking, Inc., 186 Ill. App. 3d 869, 542 N.E.2d 921 (1989);
Stiles v. Panorama Lanes, Inc., 107 Ill. App. 3d 896, 438 N.E.2d
241 (1982).
Applying these principles to the case at bar, the gravel which
accumulated is an unnatural hazard that was created due to the
presence and design of defendants' driveway. We believe that a
duty arose on the part of the defendants to exercise ordinary care
to prevent and/or remedy any dangerous conditions which arose by
virtue of the presence of the driveway.
Moreover, we find no merit to defendants' contention that
imposing a duty on adjacent landowners would lead to an "enormous"
burden with "disastrous" consequences. The rule applied in Ziemba,
to which defendants vigorously adhere, seeks to protect the
landowner from a duty to guard against injuries occurring off of
his land at the hands of a negligent third party. Ziemba, 142 Ill.
2d at 52, 566 N.E.2d at 1369. In Ziemba, foliage on the
defendant's property obscured the vision of a truck driver pulling
onto the highway, resulting in a collision with a passing bicy-
clist. However, in contrast to Ziemba, defendants here created a
condition or allowed a condition to develop that was literally on
the highway's surface. The gravel posed a danger to passing
motorists, regardless of any third-party conduct. Hence, the
imposition of a duty in this case does not put an elevated burden
on defendants to guard against the negligence of others. It merely
asks defendants to prevent conditions on their land from migrating
onto the highway and thereby creating hazards to the motoring
public.
Finally, the underlying rationale for imposing a duty on the
landowner for injuries caused by his artificial conditions is that
the landowner is generally in the best position to prevent the
injury. This case is no exception. Defendants routinely enter and
exit their own property. It follows that defendants are most
likely to observe the loose gravel being tracked onto the road and
can most effectively eliminate the hazard.
Defendants work hard at trying to carve out a special
exception in negligence cases, to allow conditions on private
property that migrate onto public ways to be considered absolutely
immune from traditional duties imposed by law even if a hazardous
condition results. All one needs to do is look at what the
consequences would be if defendants' position was adopted. If a
landowners' car rolled down his driveway and into the street, by
defendants' logic no liability could result if an accident occurred
because there would be no duty to prevent the car from rolling into
the street and no duty to remove it to clear the street and prevent
a collision. If a garden hose was left on and allowed to flow into
the street where the water froze, there would no duty to turn off
the hose or clear the street. Both such acts would be immune from
a civil action by one injured on the street, by defendants' logic,
because there is no duty to prevent or correct these obviously
hazardous conditions.
The reasoning behind our decision today is hardly novel.
Indeed, one can look back to English common law for the proposition
that a defendant may be liable for damaging another with a thing or
activity on his land which becomes unduly dangerous when located in
an inappropriate place or when damage is done to the person or
property of another by the activity or thing. Rylands v. Fletcher,
3 H.L. 330 (1868)(where a reservoir on defendant's property flooded
a mine shaft adjoining the reservoir); W. Keeton, Prosser & Keeton
on Torts §78, at 545-46 (5th ed. 1984); see also Miller v. Civil
Constructors, Inc., 272 Ill. App. 3d 263, 651 N.E.2d 239, 241
(1995). We recognize that the instant case is not one involving
the imposition of strict liability for inherently dangerous
activities as was Rylands. Our reliance upon that longstanding
English decision is confined to the proposition that liability may
result for harm caused by an otherwise harmless condition or
activity which becomes hazardous when it migrates to an inappro-
priate location. Here, defendants' gravel is "merely the right
thing in the wrong place - like a pig in the parlor instead of the
barnyard." Village of Euclid, Ohio v. Ambler Realty Co, 272 U.S.
365, 388, 71 L. Ed. 303, 47 S. Ct. 114 (1926).
As stated earlier in this opinion, the record fails to reveal
how much gravel was on the roadway. If only one pebble was
present, we could readily agree that no duty would exist to remove
it. But what of a pile of gravel 12 inches deep? Clearly a duty
to remove it would arise. How much gravel must be present before
the risks posed become unreasonable thus giving rise to a duty? We
do not know. That is a mixed question of law and fact. The
parties did not help in this analysis. The amount of gravel
present was never disclosed to the trial court or this court. As
such the case was not ripe for summary judgment. Only after this
information is presented will the trial court know whether the risk
of injury caused by the gravel was sufficient to give rise to a
duty.
We therefore reverse the judgment of the trial court and
remand the cause to the circuit court for further proceedings
consistent with this decision.
Reversed and remanded.
HOPKINS, P.J., and CHAPMAN, J., concur.
___________________________________________________________________________
GLENN H. WHITTAKER, JR., ) Appeal from the
Plaintiff-Appellant, ) Madison County.
v. ) No. 94-L-851
KEITH HONEGGER and JOY LYNN HONEGGER,) Honorable
Defendants-Appellees. ) Judge, presiding.
___________________________________________________________________________
Opinion Filed: November 7, 1996
___________________________________________________________________________
Justices: Honorable Gordon E. Maag, J.
Honorable Terrence J. Hopkins, P.J., and
Honorable Charles W. Chapman, J.,
Concur
___________________________________________________________________________
Attorneys Theodore F. Schwartz, Kenneth R. Schwartz, 11 S. Meramec,
for Suite 1100, Clayton, MO 63105
Appellant
___________________________________________________________________________
Attorneys David C. Laurent, Reed, Armstrong, Gorman, Coffey, Gilbert &
for Mudge, 101 N. Main Street, Suite 300, P.O. Box 368,
Appellee Edwardsville, IL 62025
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