Terry Tindle v. Pulte Home Corp.

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2888
T ERRY T INDLE,
Plaintiff-Appellant,
v.
P ULTE H OME C ORPORATION, a Corporation, and
P ULTE H OME C ORPORATION, ILLINOIS D IVISION,1
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CV 566—Blanche M. Manning, Judge.
A RGUED JANUARY 20, 2010—D ECIDED JUNE 9, 2010
Before F LAUM, K ANNE, and E VANS, Circuit Judges.
K ANNE, Circuit Judge. Terry Tindle suffered serious
injuries when his foot and leg sank into a hole concealed
underneath the sod in the backyard of his new home. That
1
Plaintiff sued Pulte Home Corporation, a Corporation, and
Pulte Home Corporation, Illinois Division. The correct (and
only) defendant should have been Pulte Home Corporation.
2 No. 09-2888
new home was built by Pulte Home Corporation. Tindle
sued, and Pulte moved for summary judgment, arguing
that Tindle failed to establish a triable issue on each of
the five required elements for vendor liability under
Restatement (Second) of Torts § 353 (1965). The district
court granted Pulte’s motion, and we affirm.
I. B ACKGROUND
The facts are relatively undisputed. Pulte Home Corpora-
tion purchased land in West Dundee, Illinois, and devel-
oped it into a residential neighborhood known as Car-
rington Reserves Subdivision. The subdivision was divided
into three sections: the Enclave, the Timbers, and the
Valleys. Terry and Diane Tindle’s home is located in the
Timbers. Pulte hired third parties to perform soil explora-
tion and testing and to grade and level the land prior to
construction. All of the land, including the section that
would eventually include the Tindles’ property, met or
exceeded the minimum soil compaction and bearing
capacity standards. However, at some point Pulte received
complaints from several homeowners in the Valleys about
flooding, and it was determined that a tract including
eight homes had been improperly graded.
Pulte placed sod on the soil in the Tindles’ yard prior
to them moving into their home in December 2003. Shortly
after moving in, the Tindles noticed holes developing
in the front yard near the driveway and in the back near
a drain. The Tindles’ neighbors told Mrs. Tindle that
they had also noticed holes on their property. The
Tindles requested that Pulte fix the holes near the drive-
No. 09-2888 3
way. A Pulte representative told Mrs. Tindle that the
holes were “normal,” but Pulte did repair most of the
holes in and around the driveway in the spring.
Over the course of the seven months prior to Tindle’s
accident, the Tindles regularly watered their lawn and
had it mowed. Tindle walked through his backyard at
least five times before his accident. Mrs. Tindle also
walked through the backyard and went there to clean up
after the family dog. In July 2004, while walking through
his backyard, Tindle’s foot and leg sank through the sod
into a concealed hole. He fell, seriously injuring his leg.
Sometime after the accident Mrs. Tindle marked with
flags and photographed several areas in her backyard that
she believed were holes or depressions. However, the
Tindles were never able to identify the specific hole
into which Tindle fell.
Tindle brought this suit, arguing that Pulte was negligent
in causing his injuries. The district court granted Pulte’s
motion for summary judgment, and this appeal followed.
II. A NALYSIS
We review the district court’s grant of summary judg-
ment de novo. Budde v. Kane County Forest Preserve, 597
F.3d 860, 862 (7th Cir. 2010). Because Tindle is the non-
moving party, we will draw all reasonable inferences
from the evidence in his favor. Id. We are not required,
however, to draw unreasonable inferences in his favor, St.
Louis N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262,
265 n.2 (7th Cir. 1997), and Tindle must come forward
4 No. 09-2888
with admissible evidence that demonstrates there are
genuine issues of material fact to survive Pulte’s summary
judgment motion, Gunville v. Walker, 583 F.3d 979, 985
(7th Cir. 2009); Winskunas v. Birnbaum, 23 F.3d 1264, 1267-
68 (7th Cir. 1994).
The parties agree that Illinois law governs their dispute.
In Illinois, “an ordinary vendor of real property is not
liable for personal injuries which are sustained subse-
quent to his transfer of possession and control.” Anderson
v. Cosmopolitan Nat’l Bank of Chicago, 301 N.E.2d 296, 298
(Ill. 1973); see also Restatement (Second) of Torts § 352.
But Illinois has adopted § 353 of the Restatement (Second)
of Torts, which provides an exception to the general rule
of non-liability:
To state a claim under section 353, plaintiff-
p u rc h as er m u st sufficiently allege that
(1) defendant-vendor concealed or failed to dis-
close a condition which, prior to the sale, created
an unreasonable risk to persons on the land; (2) the
defendant knew or had reason to know of the
condition and realized or should have realized
the risk involved; (3) that defendant had reason
to believe that plaintiff would not discover the
condition; (4) that the condition caused physical
harm, after plaintiff took possession but before
plaintiff knew or had reason to know of the con-
dition and the risk involved; and (5) before plain-
tiff had an opportunity to take precautions to
prevent the injury.
Heider v. Leewards Creative Crafts, Inc., 613 N.E.2d 805, 817
(Ill. App. Ct. 1993).
No. 09-2888 5
The district court found that Tindle failed to produce
evidence to support each of the required elements to
sustain a claim under § 353. (App. at 4.) The district court
discussed by way of example Tindle’s shortcomings
regarding whether Pulte knew or should have known of
the dangerous condition at the time of the sale and whether
Pulte had reason to believe Tindle would not discover
the condition. (Id. at 4-5.) We agree with the district court
that Pulte is entitled to summary judgment, both because
of what Tindle knew and what Pulte did not.
A. What Tindle Knew
Tindle’s theory of liability seems to be not that Pulte
knew of the specific hole that caused his injury, or even
that there were holes in the Tindles’ backyard. Instead,
Tindle argues that Pulte knew or should have known of “a
pervasive and systematic problem with the soil that
manifested itself in holes that Pulte covered with sod.”
(Appellant’s Br. at 11.) Assuming without deciding that
Tindle’s soil-problem theory could legally lead to liability,
Tindle’s theory falls short because he ignores the fact
that his knowledge of the dangerous condition—here, holes
in the soil—may defeat liability, just as Pulte’s knowledge
of the same problem could lead to it.
In Regas v. Associated Radiologists, Ltd., 595 N.E.2d 1223(Ill. App. Ct. 1992), the Illinois Appellate Court explained
that under § 353, “a purchaser of property cannot shut his
eyes to available information and then charge that he has
been deceived. Thus, the vendor’s liability may not be
predicated on a defective condition of which the vendee
6 No. 09-2888
was aware.” Id. at 1227 (citations and internal quotation
marks omitted); see also Lake v. United States, 522 F. Supp.
166, 168 (N.D. Ill. 1981) (“[I]n order for the vendor to
remain responsible for hazardous conditions not
revealed to the vendee, the condition must have been one
that the vendee did not know or have reason to know
existed.”). The uncontroverted evidence is that the
Tindles knew, or certainly were placed on notice of the
possibility, that there could be holes in their yard and
that those holes might cause an injury.
The evidence that Tindle suggests demonstrates Pulte’s
knowledge of the “pervasive and systemic problem with
the soil” is the same evidence that demonstrates his own
knowledge of the condition. The Tindles themselves
noticed sink holes developing near and in their driveway
within one month of moving into their home. Tindle
also submitted evidence that there were holes on their
neighbors’ property and on other lots down the street.
However, the only evidence that is properly before the
court is of the holes on the Tindles’ property. The evidence
of the holes on the neighbors’ property and in other parts
of the subdivision comes from Mrs. Tindle’s testimony
about conversations she had with the neighbors and
others. But what Mrs. Tindle says the neighbors said is
inadmissible hearsay, and Tindle cannot rely on it to
overcome summary judgment. Gunville v. Walker, 583
F.3d at 985.
Even were we to consider Mrs. Tindle’s testimony about
the conversations with her neighbors, it only shows
that the Tindles were further put on notice that there
No. 09-2888 7
might be a problem with holes on their property. Tindle
also knew that the sink holes could cause personal
injury—that is, he understood the risk of the holes—
because one of the holes had previously caused Mrs. Tindle
to fall. That the specific hole into which he fell was
covered by sod does not eliminate his knowledge of the
risk of holes being found in his backyard. His knowledge
of the risk is fatal to his claim.
In Lake, 522 F. Supp. at 167, the plaintiff’s daughter was
injured when she fell from a porch of a house that the
United States, through the Department of Housing and
Urban Development, had sold to another individual. The
court granted summary judgment to the government
because the plaintiff failed to produce evidence that the
individual purchaser did not know of the dangerous
condition of the porch. Id. at 169. Important to its decision
was the fact that “the hazardous condition which caused
the injury should have been fully apparent from a
simple visual inspection of the property as it was observ-
able and photographable from the outside of the house,”
and the purchaser had made multiple inspections of the
property. Id. at 168. Thus, the government, as the vendor,
could not be held responsible for a condition of which
the purchaser should have been aware. Id. at 168-69.
Similarly, in Regas, 595 N.E.2d at 1223, the court granted
summary judgment to the vendors. There, the plaintiff
complained that the defendant had failed to disclose
extensive water damage. The court found that the
plaintiff had been put on notice of the potential for water
damage because he had personally observed water-
8 No. 09-2888
leakage-related problems, albeit not to the full extent of
the damage. Id. at 1228. The court also noted that the
water leak problem was “visible and obvious.” Id.Finally, Swisher v. Janes, 606 N.E.2d 798 (Ill. App. Ct.
1992), demonstrates how narrow the exception to the
general rule of non-liability is in Illinois. The plaintiffs
in Swisher purchased a home that had an uncapped pro-
pane pipe in the bathroom. Within hours of closing on
the purchase, plaintiffs were injured in an explosion
that occurred when they attempted to light the pilot
light on the water heater. Id. at 799-801. There was no
evidence that the plaintiffs actually knew of the uncapped
pipe and risk of explosion. Id. at 803. However, the court
found that they had reason to know of the risk because
they had twice inspected the home, they could have
but did not hire a professional to inspect the home, and
they attempted to light the pilot light themselves rather
than seek professional help. Id. Under those circum-
stances, the court held that the plaintiffs had reason to
know of the danger. Accordingly, their action under § 353
failed as a matter of law. Id.
Like the plaintiffs in Lake, Regas, and Swisher, Tindle
had reason to know of the dangerous condition that
eventually caused his injuries. The Tindles had walked
through their backyard at least five times. Mrs. Tindle
went into the backyard weekly to clean up after the
family dog. Even if the Tindles did not know about the
holes in the backyard (that is, the full extent of the danger-
ous condition), they were certainly aware that there were
holes in other parts of the property. The holes in the
No. 09-2888 9
backyard here were visible, as Mrs. Tindle was able to
locate and photograph numerous holes after her husband
was injured. Surely the Tindles had more reason to
know of the dangerous condition on their property than
did the plaintiffs in Swisher.
Tindle argues, however, that the facts of Sparling v.
Peabody Coal Co., 322 N.E.2d 5 (Ill. 1974), are more analo-
gous to his case. In Sparling, the plaintiff’s father pur-
chased land that had previously housed a coal mine. A
large pile of slack, or coal dust, remained on the property.
The plaintiff was severely injured more than six years
after the sale of the property to her father when she
walked on top of the slack pile and fell into a fire that was
burning at the bottom of the pile. Id. at 6-7. The court
rejected the defendant’s argument that the passage of
more than six years was ample time for the father to
discover and remedy the dangerous condition. Id. at 10.
The court found that the question of whether the father
should be deemed to have constructive knowledge of
the risk was a question for the jury because the fire
did not create smoke or steam, the father rarely went
near the pile, and he did not use the land near the pile
or have reason to go near it. Id.Tindle’s case is readily distinguishable from the facts
of Sparling. As discussed above, Tindle knew of sink holes
on other parts of his property and perhaps on his neigh-
bors’ lots. He frequented his backyard, or at the very
least had more occasion to walk through his backyard
than the plaintiff in Sparling had to go near the slack pile.
Thus, because Tindle knew or had reason to know the
10 No. 09-2888
condition and risk involved, summary judgment on his
§ 353 claim must be granted.
B. What Pulte Knew
Tindle’s claim also falls short because he has failed to
produce evidence that Pulte knew or had reason to know
of the dangerous condition at the time of the sale. Tindle
argues that he has presented numerous pieces of evidence
sufficient to raise a jury question about what Pulte knew.
This evidence includes: (1) the presence of holes on
Tindle’s, his neighbors’, and others’ property; (2) the
improperly graded land in another part of the subdivi-
sion; (3) the development’s location on and near wet-
lands; (4) Pulte’s acknowledgment that building next to
a wetland raised erosion issues; (5) differing compaction
levels in the yard and under the foundation; (6) Pulte’s
covering the yard with sod; and (7) Pulte’s explanation
that the holes in the Tindles’ yard were caused by
normal settling. None of this evidence, however, genuinely
raises the issue of whether Pulte knew of the allegedly
dangerous condition at the time of the sale.
As noted earlier, Tindle cannot rely on the inadmissible
hearsay evidence of the holes developing in his neighbors’
property to defeat summary judgment. Tindle points to
evidence of a sink hole at Holly Anderson’s property, but
the only evidence regarding that hole is that it was
caused by a sprinkler leak, not by the alleged soil problem.
The sink hole at Ms. Anderson’s property, therefore,
cannot be used to impute knowledge of the risk of sink
holes on Tindle’s property. Nor can the fact that other
No. 09-2888 11
parts of the development were once improperly graded.
Tindle makes no attempt to connect the improper grading
of eight home sites in a separate part of the subdivision
to the soil condition that caused the hole in his backyard;
nor does Tindle appear to argue that it was a grading
problem that caused the hole that injured him.
Equally unhelpful to Tindle is the fact that Pulte built
Tindle’s neighborhood on and near wetlands. Tindle
himself acknowledges that “Pulte avoided the wetlands
by building houses only on the high grounds that
existed, or that they created, around the wetlands.” (Appel-
lant’s Br. at 5.) And although Tindle likely wishes that
Pulte had acknowledged erosion issues in the neighbor-
hood because of the wetlands, (see Appellant’s Br. at 11),
in reality Pulte merely acknowledged that erosion is a
concern any time one builds in a wetland area. Further,
absent some evidence that the yard was not compacted
enough, the fact that the soil in the yard was compacted
less than the soil under the foundation does not
establish that Pulte knew of a dangerous condition when
it sold the house to Tindle. To the contrary, the evidence
suggests that the soil compaction on the Tindles’ property
met or exceeded the applicable standards.
Because we cannot reasonably infer from the evidence
that Pulte had any reason to know of the alleged soil
problem in the Tindles’ yard prior to the their purchase
of the property, the fact that Pulte laid sod down on top
of the soil in the yard tells us little. Based on the evidence
before us, it would be unreasonable to infer some sort
of nefarious purpose on Pulte’s part in laying the sod.
12 No. 09-2888
Even if the sod did conceal a dangerous condition, there
is no evidence properly before the court that Pulte knew
or had reason to know of that dangerous condition.
Finally, Tindle argues that because Pulte told him the
holes in his front yard were the result of normal settling,
the court should allow a jury to consider his § 353 case. To
the extent that Tindle argues that Pulte telling him that
it was normal settling eliminated his knowledge of the
dangerous condition or his duty to investigate, he is
mistaken. See, e.g., Regas, 595 N.E.2d at 1228 (“Plaintiff’s
testimony stating that he did not know the cause of the
leak does not erase his awareness of the problem.”); Smith
v. Ethell, 494 N.E.2d 864, 865-66 (Ill. App. Ct. 1986) (barring
the plaintiffs, who had noticed some water damage in
the ceiling, from cancelling the contract even though the
defendants told the plaintiffs that the roof was in good
condition and that there was no need to inspect the
attic). He is also wrong to the extent that he is arguing
that this evidence shows Pulte knew of a dangerous
condition before the sale of the property to Tindle.
That Tindle has failed to produce evidence that Pulte
knew or should have known of a dangerous condition that
created an unreasonable risk prior to the transfer of
property further demonstrates that Pulte is entitled to
summary judgment.
III. C ONCLUSION
Tindle has failed to adequately raise a question for the
jury on each of the required elements of his claim under
No. 09-2888 13
Restatement (Second) of Torts § 353. The district court’s
grant of summary judgment is therefore A FFIRMED.
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