Grabinski v. Forest Preserve District

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Appellate Court Date: 2022.05.20
11:34:57 -05'00'
Grabinski v. Forest Preserve District, 2020 IL App (1st) 191267Appellate Court ROGER GRABINSKI, Special Administrator of the Estate of
Caption Jonathan Grabinski, Deceased, and SANDRA DENARDO-
MELANT, Special Administrator of the Estate of Salvatore Melant,
Deceased, Plaintiffs-Appellants, v. THE FOREST PRESERVE
DISTRICT OF COOK COUNTY, COMMONWEALTH EDISON
COMPANY, and INTREN, INC., Defendants-Appellees.
District & No. First District, Fifth Division
No. 1-19-1267
Filed December 11, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 17-L-2287; the
Review Hon. Christopher Lawler, Judge, presiding.
Judgment Affirmed.
Counsel on Jennifer L. Barron, of Barron Legal, Ltd., and Lynn D. Dowd, both of
Appeal Naperville, and Frank J. Olavarria, of Chicago, for appellants.
Robert L. Baker, of Chicago, for appellee Forest Preserve District of
Cook County.
Dawn M. Gonzalez, of Stone & Johnson, Chtrd., of Chicago, for
appellee Commonwealth Edison Company.
Aleen R. Tiffany, Jamie Rein, and Sarah B. Jansen, of HeplerBroom,
LLC, of Crystal Lake, for other appellee.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Justices Hoffman and Rochford concurred in the judgment and
opinion.
OPINION
¶1 The circuit court of Cook County dismissed a wrongful death action brought by the
plaintiffs-appellants, Roger Grabinski, special administrator of the estate of Jonathan
Grabinski, deceased, and Sandra Denardo-Melant, special administrator of the estate of
Salvatore Melant, deceased (Estates), against the defendants-appellees, the Forest Preserve
District of Cook County (Forest Preserve), Commonwealth Edison Company (ComEd), and
Intren, Inc. (Intren). The Estates now appeal. For the reasons that follow, we affirm the
judgment of the circuit court of Cook County.
¶2 BACKGROUND
¶3 This case arises out of a fatal car accident that occurred on March 5, 2016, in the 9400
block of Archer Avenue (road) in Willow Springs, Illinois. The Forest Preserve owns the
property adjacent to the road where the accident occurred, but it is undisputed that the Illinois
Department of Transportation (IDOT) owns, operates, and maintains the road, its right-of-
way, 1 and its drainage system. According to the Estates, 17-year-old Jonathan Grabinski was
driving a car on the road with 18-year-old Salvatore Melant as his passenger when water on
the road caused the car to hydroplane and hit a tree. Both teenagers suffered fatal injuries.
¶4 On March 3, 2017, the Estates filed a wrongful death action against several governmental
entities, including IDOT and the Forest Preserve, alleging that each governmental entity
“owned, controlled, maintained, possessed, and/or managed the road, adjacent ditch and/or
adjacent terrain where” the accident occurred. The Estates eventually voluntarily dismissed all
of the governmental entities as defendants except the Forest Preserve. 2
¶5 In response, the Forest Preserve filed a motion to dismiss pursuant to section 2-619(a)(9)
of the Code of Civil Procedure (Code) (735 ILCS 2-619(a)(9) (West 2016)). The motion argued
that the Forest Preserve did not own, operate, or control the road or its drainage system, as it
was all under the exclusive jurisdiction and control of IDOT. In support of its motion, the
Forest Preserve attached IDOT’s response to the Forest Preserve’s Freedom of Information
Act (FOIA) (5 ILCS 140/1 et seq. (West 2016)) request, which contained documents
1
A right-of-way is defined by the Illinois Highway Code as: “The land, or interest therein, acquired
for or devoted to a highway.” 605 ILCS 5/2-217 (West 2016).
2
The Estates later filed a separate lawsuit against IDOT in the Illinois Court of Claims, which is
stayed pending the outcome of this appeal.
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demonstrating IDOT’s exclusive ownership of the road, including a 66-foot right-of-way and
the road’s drainage system. The FOIA documents included IDOT’s guidelines, which define
“highway” to include “rights of way, bridges, drainage structures, signs, guardrails, and all
other appurtenances necessary for vehicular travel.”
¶6 On December 15, 2017, the Forest Preserve filed a supplement to its motion to dismiss. Its
supplement cited deposition testimony from three witnesses: John Sterenberg, surveyor for
land use compliance for the Forest Preserve; John McCabe, director of resource management
for the Forest Preserve; and James Stumpner, bureau chief of maintenance for IDOT. All three
witnesses testified consistently that the road is an IDOT roadway for which IDOT, and not the
Forest Preserve, has jurisdiction and control; including removing any debris that may build up
in the road’s drainage system. The Forest Preserve’s supplement also raised three
governmental tort immunities: (1) no liability for failure to inspect the property of others (745
ILCS 10/2-105 (West 2016)), (2) no liability for the effects of weather on roadways (745 ILCS
10/3-105(a) (West 2016)), and (3) no liability for failure to install warning signs (745 ILCS
10/3-104 (West 2016)).
¶7 On March 2, 2018, the Estates filed an amended complaint, modifying the claims against
the Forest Preserve and adding several new defendants, including ComEd and Intren. 3 The
amended complaint alleged that “on or about late 2014 to 2015, the Forest Preserve
commissioned the construction of Camp Bullfrog,” which was adjacent to the road and “in an
area in close proximity to” the location of the accident. The amended complaint further alleged
that, as part of the Camp Bullfrog construction project, ComEd “commissioned, directed and/or
installed the electric poles and powerlines” and its subcontractor, Intren, “engaged in the
installation of electric poles and powerlines *** including the cutting of trees, stumps and
debris” along the road. In the amended complaint, the Estates alleged that the work completed
on the Camp Bullfrog construction project by the Forest Preserve, ComEd, and Intren created
debris that was never removed. According to the Estates, the debris eventually migrated into
the adjacent road’s drainage system, causing it to be “obstructed and [filled] with soil and
debris, in effect closing the ditch and drainage system and making it useless, and allowing
water and run-off onto the road.” 4 The Estates asserted that the Forest Preserve, ComEd, and
Intren all “had a duty to exercise ordinary care to not obstruct, alter, damage and/or hinder the
adjacent ditch and drainage system,” and that they were negligent in allowing the road’s
drainage system to become obstructed with debris from the Camp Bullfrog construction
project.
¶8 The trial court allowed the Forest Preserve’s original motion to dismiss, as well as its
supplement, to stand as its response to the amended complaint. On July 27, 2018, Intren filed
a motion to dismiss pursuant to section 2-619 of the Code. And on October 5, 2018, ComEd
filed its own section 2-619 motion to dismiss. Both Intren and ComEd’s motions joined in the
argument asserted by the Forest Preserve that IDOT was solely responsible for the road and its
drainage system.
3
The other added defendants, R.M. Chin & Associates and Cornerstone Contracting, Inc., were
later dismissed from the case.
4
The Estates’ amended complaint, as well as their brief on appeal, reference the road’s drainage
ditch and a separate culvert pipe interchangeably. For the sake of clarity, we will refer to the road’s
entire drainage system, including both the ditch and culvert, simply as the road’s “drainage system.”
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¶9 On May 21, 2019, the trial court entered an order granting all three motions to dismiss. The
order stated that “the uncontroverted evidence shows that IDOT has exclusive jurisdiction over
the road.” Citing Dixon v. City of Chicago, 101 Ill. App. 3d 453 (1981), and section 4-203 of
the Illinois Highway Code (Highway Code) (605 ILCS 5/4-203 (West 2016)), the trial court
held that neither the Forest Preserve, ComEd, nor Intren had a concurrent duty to maintain the
road or its drainage system. The trial court additionally held that the governmental tort
immunities raised by the Forest Preserve protected it against allegations that it conducted
activities on its property which allowed water to collect on the adjacent road. The trial court
accordingly dismissed the Estates’ amended complaint with prejudice. This appeal followed.
¶ 10 ANALYSIS
¶ 11 We note that we have jurisdiction to consider this matter, as the Estates filed a timely notice
of appeal. See Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. July 1, 2017).
¶ 12 The Estates present the following issue: whether the trial court erred in dismissing its
amended complaint against the Forest Preserve, ComEd, and Intren. The Estates argue that the
Highway Code cited by the trial court is inapplicable because their claim is that all three
defendants owed a duty to remove debris from the Camp Bullfrog construction project and not
allow it to clog the adjacent road’s drainage system. Specifically, the Estates claim that the
three defendants breached their duty by cutting down trees and digging up dirt and not cleaning
up the leftover debris. And over a year later, all that debris migrated into the adjacent road’s
drainage system, allowing water to pool on the road and causing the accident.
¶ 13 A motion to dismiss pursuant to section 2-619 of the Code admits the legal sufficiency of
the pleadings but asserts certain defects or defenses. Duncan v. FedEx Office & Print Services,
Inc., 2019 IL App (1st) 180857, ¶ 10. When considering a section 2-619 motion to dismiss, all
well-pleaded facts in the complaint must be accepted as true. Doe v. University of Chicago
Medical Center, 2015 IL App (1st) 133735, ¶ 35. We review a trial court’s order dismissing a
complaint under section 2-619 de novo. Id.¶ 14 In this case, the trial court dismissed the Estates’ wrongful death action on the basis that
none of the defendants owed a duty of care to the decedents since the road and its drainage
system were owned and maintained solely by IDOT. In a wrongful death action, as in any
negligence action, it is the plaintiff’s burden to prove three essential elements: (1) that the
defendants owed a duty, (2) that the defendants breached the duty they owed, and (3) that the
breach proximately caused the injury. Stanphill v. Ortberg, 2018 IL 122974, ¶ 33. “Unless a
duty is owed, there can be no negligence.” Rozowicz v. C3 Presents, LLC, 2017 IL App (1st)
161177, ¶ 12. Whether a duty exists in a particular case is a question of law for the court to
decide. Id. In determining whether a duty of care exists, the court considers whether there is a
relationship between the parties such that a legal obligation is placed upon one party for the
other party’s benefit. Id. ¶ 13. The factors a court considers when determining whether a
defendant owes a duty of care include (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. Id.
¶ 15 Although the Estates treat the three defendants as one unit and allege that they each owed
the same duty, we find it important to parse the Forest Preserve’s duty separate from that of
ComEd and Intren where the Forest Preserve owned the adjacent property and ComEd and
Intren did not. Thus, we consider the Forest Preserve’s duty first.
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¶ 16 As already noted, it is undisputed that IDOT owns, controls, and maintains the road,
including the road’s drainage system. See 605 ILCS 5/4-203 (West 2016) (“[IDOT] shall have
exclusive jurisdiction and control over only that part of such highway which [IDOT] has
constructed, *** and for the maintenance of which [IDOT] is responsible, including the hard-
surfaced slab, shoulders and drainage ditches”). Indeed, in Dixon, 101 Ill. App. 3d 453, the
Illinois Supreme Court established that, pursuant to section 4-203 of the Highway Code, IDOT
has exclusive jurisdiction and control over its roads. Id. at 456-57. In that case, our supreme
court held that although a defective sidewalk curb was located within the City of Chicago,
section 4-203 made clear that the City did not have a concurrent duty to maintain that particular
sidewalk curb along with IDOT. Id.¶ 17 Nonetheless, the Estates still claim that the Forest Preserve owed a duty of care as the
road’s adjacent property owner. In support of their argument, the Estates cite Whittaker v.
Honegger, 284 Ill. App. 3d 739 (1996). In Whittaker, the landowners had a gravel driveway.
Id. at 741. Over time, the gravel migrated onto the adjacent roadway and caused an accident
when a motorcyclist hit a patch of the gravel. Id. The Fifth District of this court held that the
landowners owed a duty to travelers on the adjacent road to keep their land free from conditions
that were unreasonably dangerous to such travelers who may come into contact with the
condition. Id. at 742. Specifically, the court stated:
“[The landowners] 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 [the landowners] to guard against the negligence of
others. It merely asks [the landowners] to prevent conditions on their land from
migrating onto the highway and thereby creating hazards to the motoring public.”
(Emphasis added.) Id. at 743-44.
¶ 18 However, the instant case is distinguishable from Whittaker because the Estates do not
allege that the Forest Preserve let debris from the Camp Bullfrog construction project migrate
directly onto the road. Stated another way, there are no allegations that the Forest Preserve’s
property invaded the actual pavement of the road. Instead, the Estates allege that the Forest
Preserve let debris migrate into the road’s drainage system, which was not cleared out by
IDOT, and ultimately caused water to pool on the road. This is an important distinction,
especially considering that IDOT is solely responsible for maintaining the road’s drainage
system. The evidence in the record establishes that IDOT’s responsibility over the road’s
drainage system includes cleaning of debris out of the road’s drainage system, notwithstanding
the source of the debris.
¶ 19 The Estates further cite cases involving defendants that owned, operated, or controlled
water systems that diverted or leaked water onto an adjacent roadway or property. See
Van Meter v. Darien Park District, 207 Ill. 2d 359 (2003) (municipal defendant had a duty to
not divert water from its drainage system onto the adjacent property); Tzakis v. Berger
Excavating Contractors, Inc., 2019 IL App (1st) 170859 (a local public entity bears a common
law duty to not let its drains and sewers increase the natural flow of surface water onto an
adjacent property); Stoewsand v. Checker Taxi Co., 331 Ill. App. 192 (1947) (the city was
responsible for its water main beneath the surface of the State highway breaking, which caused
a dangerous condition on the highway’s pavement). Again, all of these cases are
distinguishable from the instant case where there is no allegation that the Forest Preserve’s
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own water system caused the dangerous condition. The Estates concede that IDOT owns and
operates the road’s drainage system, which they allege caused water to pool on the road.
¶ 20 Simply put, the Forest Preserve does not own, operate, or control the road and its drainage
system, rather, IDOT does. And that is the problem here, and the Estates do not allege that the
Forest Preserve let debris invade the road itself. Accordingly, the Estates’ argument that the
Forest Preserve still owed a duty of care to the decedents under these facts and circumstances
is baseless. Nonetheless, we will analyze whether the Forest Preserve owed a common law
duty to clean up the debris from its Camp Bullfrog construction project and ensure it did not
migrate into the adjacent road’s drainage system.
¶ 21 Looking at the first factor, the reasonable foreseeability of the injury, even accepting the
pleaded fact that the Forest Preserve left debris consisting of tree limbs and dirt on its property
as true, it is highly unlikely that the Forest Preserve could foresee that the debris would migrate
into the adjacent road’s drainage system more than a year later, and not be cleared out by
IDOT, causing water to pool on the road. See Yager v. Illinois Bell Telephone Co., 281 Ill.
App. 3d 903, 907 (1996) (“[f]oreseeability means that which it is objectively reasonable to
expect, not merely what might conceivably occur” (emphasis in original)). For the same
reasons, the second factor, the likelihood of the injury, weighs against finding that the Forest
Preserve owed the decedents a duty of care.
¶ 22 The third and fourth factors, the magnitude of the burden of guarding against the injury
and the consequences of placing that burden on the Forest Preserve, further weigh against
finding a duty of care. In Ziemba v. Mierzwa, 142 Ill. 2d 42 (1991), the plaintiff bicyclist
collided with a dump truck that was exiting the defendant’s driveway. Id. at 45-46. The plaintiff
alleged that the defendant landowner owed a duty to not allow growing foliage on his property
to obscure the driveway from view from the road. Id. at 46. Our supreme court held that the
defendant landowner did not owe a duty of care to the plaintiff because the condition on the
defendant’s property did not pose a danger to the plaintiff absent the dump truck driver’s
actions and requiring the defendant to be responsible for others’ negligence would be too high
of a burden. Id. at 53. Specifically, the supreme court stated:
“[The] imposition of a duty here would require defendant to ‘guard against the
negligence of others.’ This is a considerably higher burden than guarding against
dangers created solely by conditions on his land. Therefore, we find defendant did not
have a duty to maintain his property in such a way that plaintiff could see his driveway
from [the road].” Id.Likewise, in the instant case, requiring the Forest Preserve to ensure that debris on its land did
not migrate into the adjacent road’s drainage system and that IDOT did not let the debris build
up over time would place an undue burden on the Forest Preserve. Public policy supports our
decision considering that the legislature has explicitly placed the burden for maintaining the
road and its drainage system on IDOT. See 605 ILCS 5/4-203 (West 2016).
¶ 23 Accordingly, we find that the Forest Preserve did not owe a duty of care to the decedents
to clean up the debris from its Camp Bullfrog construction project and ensure it did not migrate
into the adjacent road’s drainage system where it would be left by IDOT. The trial court
properly dismissed the Estates’ amended complaint against the Forest Preserve on that basis.
Thus, we need not address the trial court’s alternative grounds for dismissing the complaint
against the Forest Preserve, i.e., the governmental tort immunities.
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¶ 24 We now turn to whether ComEd and Intren owed the decedents a duty of care. The Estates
claim that even though ComEd and Intren are not the relevant landowners, they nonetheless
owed the decedents a contractual duty to clean up any debris they created as part of the Camp
Bullfrog construction project. However, the decedents were neither a party nor a third-party
beneficiary to any of ComEd’s and Intren’s contracts regarding the Camp Bullfrog
construction project, so the Estates cannot assert any contractual rights. See Barry v. St. Mary’s
Hospital Decatur, 2016 IL App (4th) 150961, ¶ 82 (only third parties who are direct
beneficiaries have rights under a contract). Moreover, the scope of ComEd’s and Intren’s
contractual duties regarding the Camp Bullfrog construction project did not include ensuring
that debris did not, more than a year later, migrate into an adjacent IDOT road drainage system.
Further, in order to work on the Camp Bullfrog construction project, ComEd and Intren were
required to obtain a permit from IDOT to access the Camp Bullfrog construction site since it
was so close to an IDOT road. The permit expired after 90 days, and ComEd and Intren were
not allowed to access the construction site area after the permit’s expiration. It cannot be said
that, under these facts and circumstances, ComEd and Intren owed a duty to travelers using the
adjacent road to keep IDOT’s drainage system free from debris which migrated from the Camp
Bullfrog construction site.
¶ 25 Still, we consider whether ComEd and Intren owed a common law duty under the
traditional four-factor analysis. As with the Forest Preserve, the foreseeability and likelihood
of injury factors weigh against finding a duty of care. And the burden and consequences of
placing such a duty on ComEd and Intren are even greater, considering that they do not own
the property at issue and had no access to the property once their work was completed.
¶ 26 In sum, neither ComEd nor Intren owed any kind of duty of care to the decedents regarding
debris migrating from the Forest Preserve’s property into IDOT’s drainage system. The trial
court accordingly did not err in dismissing the Estates’ claims against ComEd and Intren. Thus,
we affirm the trial court’s judgment dismissing the Estates’ amended complaint pursuant to
section 2-619 of the Code.
¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 29 Affirmed.
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