Caracci v. Patel, 31 N.E.3d 460

On August 2, 2008, plaintiff Judy Caracci tripped in a pothole and injured her shoulder while crossing a roadway to reach a strip-mall store in Grand Plaza, Franklin Park, Illinois.
The strip mall (Lot 5) is owned by defendants; the roadway where the fall occurred lay on adjacent Lot 4, owned by AVG Partners I, LLC (AVG).
Defendants had a maintenance agreement with SuperValu (Lot 1) but no maintenance agreement or easement from AVG for Lot 4; AVG’s lease to Kmart required AVG to maintain driveways and parking areas.
Defendants admitted maintaining areas around the strip mall (sweeping, trash removal, snow plowing) but denied owning or exclusively controlling the Lot 4 roadway; deposition testimony said defendants did not repair the pothole at issue.
Plaintiff alleged defendants appropriated or assumed control of the roadway, breached duties to provide safe ingress/egress, created or failed to warn of the dangerous condition, and breached contractual maintenance duties; trial court granted summary judgment for defendants.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did defendants appropriate or assume control of the Lot 4 roadway?	Defendants appropriated the roadway by using/maintaining it (sweeping, plowing, garbage removal) and thus assumed duty.	Defendants did not own, lease, or exclusively use Lot 4; maintenance acts do not amount to appropriation.	No appropriation; no genuine issue of material fact—maintenance alone insufficient to establish appropriation.
Did defendants owe a duty to maintain the roadway or provide safe ingress/egress?	Defendants owed a duty because the roadway served as ingress/egress to their stores and they had undertaken maintenance.	No duty: public abutting roadway remained owned/maintained by AVG; defendants didn’t assume control.	No duty owed; defendants did not assume control that would impose duty.
Could plaintiff’s expert affidavit create a triable issue of duty/breach?	Expert (architect) opined defendants had duty and breached it.	Expert’s affidavit contains legal conclusions and lacks factual basis.	Expert’s legal conclusions were inadmissible; affidavit did not raise a genuine factual dispute.
Did defendants breach any contractual duty to maintain Lot 4?	Defendants had contracts/permits suggesting they repaired potholes and thus had contractual duty.	No contract or easement required defendants to maintain Lot 4; AVG/Kmart lease assigned maintenance to AVG.	No contractual duty shown; summary judgment proper.

Burtell v. First Charter Service Corp., 76 Ill. 2d 427 (1979) (final judgment on appeal draws into question prior nonfinal orders that produced the judgment)
Williams v. Manchester, 228 Ill. 2d 404 (2008) (summary judgment standard and appellate review de novo)
Knauerhaze v. Nelson, 361 Ill. App. 3d 538 (2005) (admissions in unverified original pleadings do not constitute judicial admissions after amendment)
Gilmore v. Powers, 403 Ill. App. 3d 930 (2010) (abutting landowner owes no duty to maintain public roadway absent appropriation or assumption of control)
Cooley v. Makse, 46 Ill. App. 2d 25 (1964) (appropriation found where public way became sole means of ingress/egress and was used exclusively)
McDonald v. Frontier Lanes, Inc., 1 Ill. App. 3d 345 (1971) (appropriation where business used and blocked public sidewalk/parkway for customers)
Friedman v. City of Chicago, 333 Ill. App. 3d 1070 (2002) (appropriation found for sidewalk when business blocked portion for seating)
Smith v. Rengel, 97 Ill. App. 3d 204 (1981) (landlord’s maintenance acts held sufficient in that case to impose duty; later districts criticized as overbroad)
Evans v. Koshgarian, 234 Ill. App. 3d 922 (1992) (acts like sweeping, shoveling, salting a parkway do not show appropriation)
Burke v. Grillo, 227 Ill. App. 3d 9 (1992) (mowing and shoveling insufficient to establish appropriation)