Stackhouse v. Royce Realty and Management ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Stackhouse v. Royce Realty & Management Corp., 2012 IL App (2d) 110602
Appellate Court CATHY STACKHOUSE, Plaintiff-Appellee, v. ROYCE REALTY AND
Caption MANAGEMENT CORPORATION, Defendant-Appellant (Lakemoor
Country Club, Inc., d/b/a Lakemoor Golf Course, Defendant).
District & No. Second District
Docket No. 2-11-0602
Filed June 4, 2012
Held In an action for the injuries plaintiff suffered when a tree on defendants’
(Note: This syllabus property fell and struck her, the verdict finding defendants responsible
constitutes no part of was affirmed, since under a traditional analysis, defendants had a duty to
the opinion of the court protect plaintiff from the tree where it was located on a golf course near
but has been prepared a cart path used by golfers and pedestrians, defendants knew through an
by the Reporter of employee that a tree of the same variety had fallen two years earlier
Decisions for the because it was “rotten,” it was reasonably foreseeable the tree could fall
convenience of the and harm someone, the burden of imposing a duty on defendants to
reader.)
inspect the tree and remove it was not onerous, and based on the evidence
that the tree’s structural deficiencies caused it to fall, the jury’s finding
that defendants’ breach of their duty to protect plaintiff from the tree was
the proximate cause of her injuries was not subject to a judgment n.o.v.
Decision Under Appeal from the Circuit Court of Lake County, No. 08-L-610; the Hon.
Review Jorge L. Ortiz, Judge, presiding.
Judgment Affirmed.
Counsel on Thomas H. Boswell and Timothy G. Shelton, both of Hinshaw &
Appeal Culbertson LLP, of Chicago, for appellant.
John A. Kornak, Mark J. Vogg, and Thomas J. Popovich, all of Law
Offices of Thomas J. Popovich, P.C., of McHenry, for appellee.
Panel JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices Bowman and Birkett concurred in the judgment and opinion.
OPINION
¶1 On April 26, 2008, the plaintiff, Cathy Stackhouse, was severely injured when a tree
located on the property of the defendant Lakemoor Country Club, Inc. (Lakemoor), fell and
struck her. The plaintiff filed a complaint against Lakemoor and its manager, the defendant
Royce Realty and Management Corporation (Royce), sounding in negligence. A jury returned
a verdict in the plaintiff’s favor, finding the defendants equally responsible. Royce filed a
motion for a judgment notwithstanding the verdict (n.o.v.), which the trial court denied.
Royce appeals from that order,1 arguing that (1) it owed no duty to the plaintiff and (2) its
breach of any purported duty was not the proximate cause of the plaintiff’s injuries. We
affirm.
¶2 On July 24, 2008, the plaintiff filed a complaint against the defendants, sounding in
negligence. The complaint alleged that, on April 26, 2008, the plaintiff was walking on a
path next to the golf course that was owned by Lakemoor and managed by Royce. While she
was walking, a tree collapsed and fell on her, causing her severe injuries. The complaint
alleged that the defendants were negligent because they (1) improperly maintained the golf
course and failed to reasonably inspect it; (2) failed to remove a tree “with a propensity for
falling and injuring the Plaintiff and others”; (3) permitted the tree to remain on the golf
course property; and (4) failed to warn the plaintiff of the dangerous condition of the tree.
¶3 Between September 27 and October 8, 2010, the trial court conducted a jury trial on the
plaintiff’s complaint. The plaintiff testified that she lived at 190 Windward in Lakemoor,
which was adjacent to the Lakemoor Golf Course. She had worked for Royce in 2002 as
manager of the golf course pro shop. One of her responsibilities was “keeping an eye out”
to make sure that the workers were doing their jobs. While working for Royce she knew
Cesar Lopez, who was the golf course superintendent.
¶4 On July 10, 2006, she heard a noise outside her home. The next morning she saw that a
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Lakemoor did not file a notice of appeal.
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huge tree had fallen across a golf cart path near the thirteenth tee of the golf course. When
she looked at the tree stump, she thought the wood inside the stump looked unusual–like
sponge or Styrofoam rather than solid wood. Since the inside of the tree looked so unusual,
she took a series of photographs of the tree in anticipation of talking to someone at the golf
course about the tree. Shortly after the tree fell, the plaintiff met with Lopez. She told him
that she thought the tree was rotten and that maybe he should have it checked out. He told
her that he would have “someone check them.” She was satisfied with the answer and had
no reason not to believe him.
¶5 On April 26, 2008, at approximately 5:30 p.m., the plaintiff went behind her house to
take her dog for a walk. The weather was windy. As she was walking near the thirteenth tee,
a tree limb struck her on her back between her shoulders, throwing her forward, facedown
onto the ground. She was subsequently transported to a hospital via helicopter.
¶6 Kevin Plencner testified that, since 2004, he had been the vice president of Royce. His
duties included supervising Lopez. He expected Lopez to check the trees on the golf course
to determine if they were healthy. Plencner would be concerned if a tree fell on the golf
course, because it might kill or seriously injure someone. He would want Lopez to
investigate why a tree fell, because there was a potential that it might happen with another
tree at the same location. Plencner testified that, if Lopez did not have the expertise to
determine why a particular tree fell on the golf course, he expected Lopez to hire an arborist
to make that determination.
¶7 Lopez testified that he was employed by Royce as the golf course superintendent when
both the 2006 and the 2008 trees fell. He knew the plaintiff because she had worked at the
golf course in 2002. She lived near the thirteenth tee. The backyard of her home was adjacent
to the area where the trees fell in 2006 and 2008. He did not recall having a conversation
with the plaintiff about the tree that fell in 2006, but it was possible that the conversation
took place. He had the tree that fell in 2006 removed. He did not contact an arborist or do
anything else to determine why that tree had fallen.
¶8 David Boone, a certified arborist, testified that he visited Lakemoor on May 13, 2008,
to determine why the limb from the tree at issue had struck the plaintiff. He determined that
the 2006 and 2008 trees, which were both cottonwoods, failed because of structural
weaknesses due to excessive decay. The cause of the decay was an aggressive fungus called
ganoderma applanatum. The most common way for ganoderma applanatum to be
introduced into a tree is via the root system. He determined the cause of the failure of the
2008 tree by using a mallet, a drill, and a measuring device.
¶9 Boone stated that the two trees stood approximately three to four feet from one another.
If you stood between the trees, you could touch both at the same time. When trees of the
same species are close together, it is fairly common for their root systems to join together.
Boone believed that the 2006 tree transmitted the ganoderma fungus to the 2008 tree, thus
causing that tree to fail as well. Boone also noted that the 2008 tree was close to several cart
paths. One path was approximately 15 feet from the tree while another path was 27 feet from
the tree.
¶ 10 Boone further testified that, had a certified arborist been called to Lakemoor in July 2006
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to investigate the 2006 tree failure, the arborist would have noted the fruiting bodies on the
trunk of the tree, observed the rot, and determined that the rot was what caused the tree to
fail. The arborist would also have looked at the 2008 tree and evaluated it for structural
soundness. Had the arborist evaluated the structural soundness of the 2008 tree, he or she
would have decided, given the tree’s location, the target potential, and the amount of
structural decay present at that time, that the tree probably should be removed. Boone
explained that the “target potential” meant that the tree would be considered an unreasonable
risk because there was a high traffic potential with the proximity of the tee box and the
surrounding cart paths. Boone acknowledged that the winds were strong on the day that the
tree fell. However, he testified that, due to the diseased condition of the tree, it “could have
fallen with no wind at all.”
¶ 11 On cross-examination, Boone acknowledged that in reviewing a photograph taken of the
tree before April 26, 2008, he could not see the presence of any “fruiting bodies.” He could
identify no other external evidence of disease; to the contrary, the tree had a healthy canopy
of leaves. He testified that a tree can appear to be biologically healthy even when it is
structurally unsound. The diseased condition of the tree might have been externally apparent,
at best, six months to a year prior to the accident.
¶ 12 Dr. Bruce Allison, who was a professor in forest and wildlife ecology, testified that the
only sure way to discover internal disease afflicting a tree before it falls is to employ a
structural integrity analysis, using a resistograph, a drill, sound waves, and a mallet. As to
the tree at issue, he testified that the tree’s decay did not by itself cause the tree to fall.
Rather, “extraordinary forces” working together–including heavy wind, an insufficient
amount of remaining wood, and the tree’s leafy crown–caused the tree to fall.
¶ 13 At the close of the plaintiff’s case, the defendants moved for a directed verdict, which the
trial court denied. At the close of trial, the jury returned a verdict in the plaintiff’s favor and
awarded her $4,529,322.34. The defendants made an oral motion for a judgment n.o.v.,
which the trial court denied. Royce subsequently filed a written motion for a judgment n.o.v.,
arguing that it owed no legal duty to the plaintiff. The trial court denied Royce’s motion. The
trial court explained that whether Royce owed the plaintiff a duty should be determined
under traditional negligence principles. The trial court found that Royce had a duty to
exercise reasonable care on the basis of its knowledge of the existence of a dangerous
condition. The trial court additionally found that Royce had voluntarily assumed a duty to
check the tree at issue when Lopez told the plaintiff that he would have “someone check
them.” Further, there was sufficient evidence for the jury to determine that Royce’s breach
of its voluntarily assumed duty was the proximate cause of the plaintiff’s injuries. Following
the trial court’s ruling, Royce filed a notice of appeal.
¶ 14 At the outset, we consider whether we have jurisdiction of Royce’s appeal. The plaintiff
argues that we do not, because Royce did not file a notice of appeal within 30 days after the
trial court denied the defendants’ oral motion for a judgment n.o.v. Royce insists that it
complied with section 2-1202(b) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-
1202 (West 2010)) and timely filed its notice of appeal within 30 days of the denial of its
written posttrial motion.
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¶ 15 Section 2-1202 of the Code provides in pertinent part:
“(b) Relief desired after trial in jury cases, heretofore sought by reserved motions for
directed verdict or motions for judgment notwithstanding the verdict, in arrest of
judgment or for new trial, must be sought in a single post-trial motion. *** The post-trial
motion must contain the points relied upon, particularly specifying the grounds in support
thereof, and must state the relief desired, as for example, the entry of a judgment, the
granting of a new trial or other appropriate relief. ***
(c) Post-trial motions must be filed within 30 days after the entry of judgment or the
discharge of the jury, *** or within any further time the court may allow within the 30
days or any extensions thereof.” 735 ILCS 5/2-1202 (West 2010).
A posttrial motion pursuant to section 2-1202 must be in writing to be effective. Zirp-
Burnham, LLC v. E. Terrell Associates, Inc., 356 Ill. App. 3d 590, 604 (2005). An oral
motion is insufficient. Welch v. Ro-Mark, Inc., 79 Ill. App. 3d 652, 656 (1979).
¶ 16 Here, after the jury returned its verdict, the defendants orally requested a judgment n.o.v.
The trial court denied the request. Royce then subsequently filed a timely written posttrial
motion, which the trial court also denied. Royce then filed a notice of appeal within 30 days
of the trial court’s denial of its written motion. The plaintiff contends that Royce’s oral
request constituted its posttrial motion for purposes of section 2-1202. In light of Zirp-
Burnham and Welch, the plaintiff’s argument is without merit. As Royce filed a notice of
appeal within 30 days of the trial court’s denial of its written section 2-1202 motion, we have
jurisdiction to consider Royce’s appeal.
¶ 17 Turning to Royce’s arguments on appeal, Royce first contends that the trial court erred
in not granting a directed verdict in its favor or granting its motion for a judgment n.o.v.
because, as a matter of law, it had no duty to protect the plaintiff from a natural condition on
the land, such as a falling tree. Alternatively, Royce argues that it owed no duty to the
plaintiff under a traditional negligence analysis.
¶ 18 In a negligence action, the plaintiff must provide sufficient facts to show the existence
of a duty owed by the defendant, a breach of that duty, and an injury proximately resulting
from the breach. Ziemba v. Mierzwa, 142 Ill. 2d 42, 45 (1991). Where the plaintiff fails to
provide facts from which the court can infer the existence of a duty, judgment for the
defendant is appropriate. Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 411 (1991).
The existence of a duty is a question of law to be determined by the court. Bonavia v.
Rockford Flotilla 6-1, Inc., 348 Ill. App. 3d 286, 291 (2004). Accordingly, our review is de
novo. Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 14.
¶ 19 A directed verdict or a judgment n.o.v. is appropriate where all of the evidence, viewed
in the light most favorable to the nonmoving party, so overwhelmingly favors the moving
party that no contrary verdict based on the evidence could stand. Maple v. Gustafson, 151 Ill.
2d 445, 453 (1992). In a negligence action, where the plaintiff’s evidence fails to establish
the existence of a duty, a directed verdict is appropriate. Gonzalez v. Kennedy Mobil Service,
Inc., 274 Ill. App. 3d 1077, 1083 (1995).
¶ 20 In arguing that it had no duty to protect the plaintiff from a natural condition on the
property at issue, Royce relies on Burns v. Addison Golf Club, Inc., 161 Ill. App. 3d 127
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(1987). In Burns, the plaintiff was injured when she tripped over an exposed tree root on the
defendant’s golf course. The trial court granted summary judgment for the defendant. The
trial court found “that defendant had not breached its duty of care to plaintiff, as the exposed
tree root was a natural condition which did not constitute a legal defect or hazard that could
support a cause of action for negligence.” Id. at 129. This court affirmed. We explained that,
under the circumstances of the case, the plaintiff was required to show that she was injured
as a result of an unnatural condition of the defendant’s premises. Id. at 130. Relying on
Warchol v. City of Chicago, 75 Ill. App. 3d 289, 297 (1979), we noted that, where a tree and
its roots did not of themselves create an unreasonable risk of harm and the defendant did
nothing to maintain the tree and roots so as to create an unreasonable risk of harm, the
defendant owed no duty to the plaintiff, who was injured when she fell against the tree.
Burns, 161 Ill. App. 3d at 130. We then expounded that the case was “akin to those where
a person slips on ice, snow, or water.” Id. In those cases, the “law is well settled in Illinois
that no liability is incurred for injuries resulting from a fall on snow or ice which has
accumulated as a consequence of natural causes where the accumulation or condition is not
aggravated by the owner of the premises.” Id. Finally, in so ruling, we declined the plaintiff’s
request to reject the common-law distinctions between natural and artificial conditions and
adopt ordinary negligence principles to determine a possessor’s liability. Id. at 131.
¶ 21 Although this court declined to address a possessor’s potential liability regarding a
natural condition under ordinary negligence principles, we note that many other Illinois
courts have. In Mahurin v. Lockhart, 71 Ill. App. 3d 691 (1979), the plaintiff was injured
when a branch fell from a tree growing on an adjoining property. The reviewing court noted
that the “traditional rule” is that a landowner has no duty to persons outside the property to
prevent injuries caused by natural conditions. Id. at 692 (citing Restatement (Second) of
Torts § 363 (1965)). The only exception to the traditional rule, as stated in the Restatement
(Second) of Torts, is that a landowner in an urban area has a duty to exercise reasonable care
to prevent an unreasonable risk of harm to passing motorists from the condition of trees on
the premises. Id. The reviewing court expanded the scope of liability, holding that “a
landowner in a residential or urban area has a duty to others outside of his land to exercise
reasonable care to prevent an unreasonable risk of harm arising from defective or unsound
trees on the premises, including trees of purely natural origin.” Id. at 693.
¶ 22 In Chandler v. Larson, 148 Ill. App. 3d 1032 (1986), the reviewing court held that the
plaintiff stated a cause of action for negligence against an adjoining residential lot’s owner
whose tree had grown roots that entered the plaintiff’s yard and damaged the plaintiff’s
garage. The reviewing court explained that the plaintiff sufficiently alleged that the defendant
had notice that the roots from the defendant’s tree were damaging the plaintiff’s garage yet
the defendant “refuse[d] to uproot the tree or use other methods which would prevent further
harm and injury to plaintiff’s garage.” Id. at 1038.
¶ 23 In Eckburg v. Presbytery of Blackhawk of the Presbyterian Church (USA), 396 Ill. App.
3d 164 (2009), a large portion of a tree located on the defendant’s property fell across the
road as the plaintiff and his wife were riding past on a motorcycle. The plaintiff was severely
injured and his wife was killed. The trial court dismissed the complaint, on the ground that
the landowner did not owe a duty to the plaintiff with respect to the tree because the property
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was rural. Id. at 168. After reviewing both Illinois and foreign authorities, this court reversed
and concluded that a “traditional negligence analysis,” rather than “the overly simplistic
‘urban/rural’ distinction,” was the appropriate means to determine whether the landowner
owed a duty to the plaintiff. Id. at 173 (citing Miles v. Christensen, 724 N.E.2d 643, 646 (Ind.
Ct. App. 2000) (holding that public policy considerations favor recognizing that one who
owns land, whether urban or rural, might owe a duty of reasonable care as to natural land
conditions that threaten outsiders)). This court further stated that the traditional negligence
analysis “takes into consideration the various factors of each case, such as the size and type
of the road, the traffic patterns of the road, the nature of the surrounding land, the condition
and location of the tree, the nature of the danger posed to travelers, and the burden of
inspecting and removing the danger.” Id. at 173-74.
¶ 24 In Eckburg, we also reversed the trial court’s finding that the plaintiff’s complaint did not
adequately allege that the defendant had actual notice of the potential for harm. In his
complaint, the plaintiff alleged that the defendant had actual notice that trees on the
defendant’s property were in defective and unsound condition and posed a threat of falling
onto the roadway. Id. at 165. Specifically, the complaint alleged that one week prior to the
plaintiff’s accident a person named Gordon Bell called the defendant to complain about a
“ ‘precariously perched’ ” tree along the roadway. Id. We held that “[w]hether the notice
provided by Bell was adequate to place defendant on notice that further action was necessary,
whether an inspection would have discovered the danger, and whether defendant breached
a duty to inspect the trees after receiving notice are questions of fact that the trial court
should not have decided at this stage.” Id. at 175.
¶ 25 In Ortiz v. Jesus People, U.S.A., 405 Ill. App. 3d 967 (2010), the plaintiff was bicycling
on a public sidewalk in the City of Chicago when she was struck by a limb falling from a tree
on the defendant’s property. The defendant appealed the jury verdict in favor of the plaintiff.
On appeal, the defendant argued that it had no actual or constructive knowledge that the tree
was unsound. Id. at 974. The defendant also argued that knowledge that might have been
available to an expert could not serve as constructive notice on the part of a landowner. Id.
¶ 26 The Ortiz court held that, “under Illinois law, an urban landowner owes a duty of
reasonable care that includes taking reasonable steps to prevent injury.” Id. at 975. The Ortiz
court explained:
“Aside from the fact that the property was located in Chicago, an urban area, the tree
was, by defendant’s own admission, one of only four in defendant’s garden and, as such,
obviates any need for a balancing of the burden of inspection and removal of the danger
with the potential for harm. [Citation.] Most importantly, the tree was adjacent to a
public sidewalk on a busy public street and a very large limb extended over that
sidewalk. Thus, reasonable care would involve inspection of and maintenance of the tree
to prevent an injury to travelers of the public sidewalk.” Id.
The Ortiz court further stated that the question of duty in the case depended on the traditional
negligence analysis, i.e., “the court must weigh the reasonable foreseeability of the injury,
the reasonable likelihood of the injury, the magnitude of the burden of guarding against it,
and the consequences of placing the burden on the defendant.” Id. The Ortiz court held that
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the defendant had a duty under the circumstances and rejected the defendant’s claim that
there could be no duty without proof of any visible defect in the tree. The Ortiz court agreed
with the trial court’s observation “that it would have been easy to obtain information about
the condition of the tree and, considering defendant’s years of ownership of the property and
the tree, the size of the limb, and the fact that it was over the public walkway, ‘it was
incumbent upon [defendant] to find out and to take appropriate action.’ ” Id.
¶ 27 In Belton v. Forest Preserve District, 407 Ill. App. 3d 409 (2011), the plaintiff sought
damages for injuries he sustained when a large dead tree limb fell and struck his car as he
drove past the property of the defendant forest preserve district. The trial court dismissed the
plaintiff’s complaint, but the reviewing court reversed. Id. at 427. The reviewing court
analyzed the plaintiff’s complaint pursuant to a “traditional negligence analysis.” Id. at 423.
The reviewing court found that the record lacked an “adequate factual basis for resolving the
duty question” and, accordingly, the court remanded the case instead of ruling on the
question of whether the forest preserve district had a duty to “exercise reasonable care in
maintaining the trees” along the road where the plaintiff was injured. Id. at 424.
¶ 28 We find the analysis in Mahurin, Chandler, Eckburg, Ortiz, and Belton persuasive, as
those courts looked beyond arbitrary distinctions, such as whether the plaintiff was harmed
in an urban or rural setting, and instead looked to various relevant factors to determine
whether the defendant’s conduct was reasonable under the circumstances. As we explained
in Eckburg, it is not fair “that the law should be applied in such a way that provides relief for
a plaintiff traveling on a town road and no relief to a plaintiff traveling on a major highway,
simply because the town road is in an area deemed ‘urban’ and the highway is in one deemed
‘rural.’ ” Eckburg, 396 Ill. App. 3d at 173. Similarly, we do not believe that the law should
be applied in such a way that provides relief for a plaintiff who was injured due to an
artificial condition of a tree on the defendant’s land rather than a natural condition, regardless
of whether the defendant had knowledge of that dangerous condition. In so ruling, we depart
from that part of the analysis in Burns that held to the contrary.
¶ 29 We also find that Burns is factually distinguishable from the instant case because the
danger in Burns–exposed tree roots–was open and obvious. Indeed, in determining that the
defendant landowner did not owe the plaintiff any duty, the Burns court relied on several
cases that involved open and obvious dangers. Burns, 161 Ill. App. 3d at 130 (citing
Warchol, 75 Ill. App. 3d at 297 (involving exposed tree roots), Lohan v. Walgreens Co., 140
Ill. App. 3d 171, 173 (1986) (natural accumulation of snow and ice), and Bakeman v. Sears,
Roebuck & Co., 16 Ill. App. 3d 1065, 1068 (1974) (same)). The Burns court further
specifically distinguished the issue therein from those cases that involved hidden dangers.
Id. at 131. Here, at issue was the hidden danger of a rotten tree. Accordingly, as we depart
from the Burns court’s use of natural/artificial distinctions as well as find that Burns is
factually distinguishable, we therefore reject Royce’s argument that our holding in Burns
governs this appeal.
¶ 30 We next turn to the issue of whether Royce owed a duty to the plaintiff under a
traditional analysis. In Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 226 (2010), our
supreme court explained:
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“The touchstone of the duty analysis is to ask whether the plaintiff and defendant stood
in such a relationship to one another that the law imposes on the defendant an obligation
of reasonable conduct for the benefit of the plaintiff. The inquiry involves four factors:
(1) the reasonable foreseeability of the injury; (2) the likelihood of the injury; (3) the
magnitude of the burden of guarding against the injury; and (4) the consequences of
placing the burden on the defendant.”
Even if a landowner (or manager of land) would not generally owe a duty of reasonable care
to another due to a dangerous condition on his land, he might nonetheless owe a duty of care
if he has knowledge of the condition on his land. Eckburg, 396 Ill. App. 3d at 169. Duty
based on knowledge of a dangerous condition is not limited to actual knowledge, but may
include constructive knowledge as well. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32,
49 (2004). One will be considered to have constructive knowledge if he receives facts that
would make the dangerous condition known to any ordinary prudent person. Id.
¶ 31 We believe that the danger of a tree falling on a golf course and hitting a person due to
a naturally occurring fungus is not the type of event that occurs so frequently that, in general,
it could have been reasonably foreseen. However, the tree that fell on the plaintiff in this case
was not just any tree. The tree was a large cottonwood in close proximity (falling distance)
to a cart path frequently used by golfers and pedestrians who were intended and permitted
users of both the cart path and the land adjoining the golf course. Most importantly, Royce,
through its golf course superintendent Lopez, knew in 2006 that another large cottonwood
tree just a few feet away fell over because it was “rotten.” Based on this information, a
reasonable person in Lopez’s position should have known that the tree at issue in this case
was also possibly rotten, or diseased, and therefore posed the danger of falling. This was
because, as Boone testified, the root systems of large cottonwood trees that are close together
commonly join together and, if one tree is diseased, it can easily pass the disease to the other
tree via the combined root system. Plencner, Royce’s vice president and Lopez’s supervisor,
corroborated Boone’s testimony when he acknowledged that he would have wanted Lopez
to investigate why the 2006 tree fell, because there was a potential that it might happen with
another tree at the same location. Accordingly, based on this evidence, we hold that it was
reasonably foreseeable that a large tree that was possibly diseased and near a path people
used could fall and harm someone. Further, as an obligation on Royce to inspect that one tree
and remove it if it was rotten was not an onerous burden, we hold that Royce owed a duty
to the plaintiff to inspect the tree and remove it if it was rotten. See Krywin, 238 Ill. 2d at
226.
¶ 32 We additionally note that although the tree at issue did not fall until almost two years
after Royce had constructive knowledge that the tree was possibly diseased, the passage of
time did not extinguish this initial duty. Kavales v. City of Berwyn, 305 Ill. App. 3d 536, 546
(1999). The fact that an alleged injury occurred many years after an alleged breach of a duty,
while it could ultimately present proof problems with respect to elements of the plaintiff’s
cause of action, does not change the fact of the existence of the duty. Id. Thus, the fact that
the tree did not fall until 2008 did not discharge Royce of its duty to inspect the tree in 2006.
¶ 33 As Royce did not inspect the tree at issue, we next consider whether the breach of that
duty was the proximate cause of the plaintiff’s injuries. Royce argues that, even if the tree
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that fell in 2008 had been inspected in 2006, its diseased condition “was not likely to have
been discovered.” Further, Royce insists that the type of periodic inspections proposed by the
experts at trial would not have ensured the identification of the diseased tree.
¶ 34 As stated above, a judgment n.o.v. is appropriate only where all of the evidence so
overwhelmingly favors the moving party that no contrary verdict based on the evidence could
stand. Maple, 151 Ill. 2d at 453. The court has no right to enter a judgment n.o.v. if there is
any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a
substantial factual dispute, or if the assessment of the credibility of the witnesses or the
determination regarding conflicting evidence is decisive to the outcome. Id. at 454.
Proximate cause is a question for the trier of fact. First Springfield Bank & Trust v. Galman,
188 Ill. 2d 252, 257 (1999).
¶ 35 Here, Boone testified that, had a qualified arborist been called to the golf course in July
2006, an investigation of the downed tree would have prompted an investigation of the 2008
tree. The 2008 tree would have been evaluated for structural integrity. The evaluation would
have found a significant amount of decay. Given the location of the tree, the target potential,
and the amount of structural decay, the tree would probably have been removed. Boone
testified that an arborist would have recommended removal of the tree in the spring of both
2007 and 2008, for the same reasons. Boone also testified that the mature ganoderma
applanatum present at the base of the tree would have been visible for at least a year before
the tree failed.
¶ 36 Royce points to parts of Boone’s testimony that suggest that, because the tree’s disease
was so fast moving, Royce could not have known that the tree was diseased even if it had
done regular inspections. However, we believe that, considering the totality of Boone’s
testimony, the jury could reasonably conclude that, had Royce inspected the tree when it
learned of the adjacent diseased tree in 2006, the tree would have been removed prior to
April 26, 2008, when it fell.
¶ 37 Royce further argues that the evidence established that the tree’s condition was not the
sole proximate cause of its falling. Royce points to Dr. Allison’s testimony that decay alone
did not cause the tree to fall. Rather, he testified that “extraordinary forces” working
together–heavy wind, an insufficient amount of remaining wood, and the tree’s leafy
crown–caused the tree to fall. However, “ ‘[a]n injury may have more than one proximate
cause.’ ” Richter v. Village of Oak Brook, 2011 IL App (2d) 100114, ¶ 21 (quoting Smith v.
Armor Plus Co., 248 Ill. App. 3d 831, 840 (1993)). In any event, Boone testified that, due
to the structural weakness of the tree, it “could have fallen with no wind at all.” Again, it was
for the jury to resolve the conflicts in the evidence. As there was evidence that the tree’s
structural deficiencies alone were the reason why it fell, the jury’s determination that Royce’s
breach of its duty to protect the plaintiff from the tree was the proximate cause of the
plaintiff’s injuries was not subject to a judgment n.o.v.
¶ 38 For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.
¶ 39 Affirmed.
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