No. 3-00-0609

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

PEGGY DOAK, 				)  Appeal from the Circuit Court

								)  of the 14th Judicial Circuit  	

	Plaintiff,			)  Rock Island county, Illinois,

						)	

    v.					)	

						)	

THE CITY OF MOLINE,			)	

A Municipal Corporation,		)

						)  No. 99--L--126

	Defendant-Third Party	) 

	Plaintiff-Appellant,	)	

						)

	v.					)

						)	

RYAN L. ROWE,				)	

						)  Honorable

	Third Party Defendant-	)  Ronald C. Taber,

	Appellee.				)  Judge Presiding.

_________________________________________________________________

	JUSTICE SLATER delivered the opinion of the court:

_________________________________________________________________

	The defendant, the City of Moline (the City), appeals from an order of the circuit court granting third party defendant Ryan

Rowe's motion to dismiss.  On appeal, the City argues that the

trial court erred in: (1) granting Rowe's motion to dismiss; and 

(2) denying its requests to amend the pleadings.  For the

following reasons, we affirm.

	The record reflects that on August 31, 1998, the plaintiff,

Peggy Doak, was jogging in the vicinity of 14th Street and 23rd Avenue in Moline, Illinois, when she allegedly tripped and fell

on an uneven and sunken portion of the sidewalk.  As a result of

the fall, Doak claims that she sustained serious injuries.  The

sidewalk where Doak was allegedly injured was adjacent to and

abutting Rowe's property.  

	On July 22, 1999, Doak filed suit against the City of Moline

alleging that it failed to properly maintain its sidewalks and

allowed the sidewalk to be in a defective and dangerous

condition.  The City of Moline subsequently filed a third party

complaint against Rowe for failing to discharge his duties to

maintain the sidewalk pursuant to city ordinance.  That ordinance

provides, in part:

		"It shall be the responsibility of the abutting property owner to maintain the

sidewalk as to proper alignment, grade and

surface."  Moline Municipal Code § 28-3104

(eff. February 24, 1998).         

	On February 4, 2000, Rowe filed a motion to dismiss.  735

ILCS 5/2--615 (West 1998).  After a hearing, the trial court

found: (1) the City of Moline had a non-delegable duty to

maintain its sidewalks; and (2) the City's ordinance attempted to

place that duty on abutting landowners.  Therefore, the court

held that the ordinance was unenforceable and granted Rowe's

motion to dismiss.

	On appeal, the City first argues that the trial court erred

in granting Rowe's motion to dismiss.  Specifically, it contends that the ordinance is a valid exercise of its police power and

therefore legally imposes an affirmative duty on Rowe to maintain

the sidewalk.  To support this contention, it cites to City of Carbondale v. Brewster, 78 Ill. 2d 111, 398 N.E.2d 829 (1979).

	A trial court may dismiss a complaint where the pleadings

show that the plaintiff can prove no set of facts that would

entitle him to relief.  See 735 ILCS 5/2--615 (West 1998). 

Appellate courts will review a motion to dismiss on a de novo basis.  Toombs v. Champaign, 245 Ill. App. 3d 580, 615 N.E.2d 50 (1993).  

	We find the City's argument to be without merit.  In

Brewster, our Supreme Court held that an ordinance requiring a landowner to remove ice and snow from the sidewalk abutting their

property was a valid exercise of police power.  Brewster, 78 Ill. 2d at 118, 398 N.E.2d at 833.  In so holding, the court noted:

		"The burden is not so manifestly

disproportional or unrelated to a legitimate

classification as to amount to unjust

discrimination.  The expenditure of time and

effort, and perhaps expense, which the

ordinance exacts is incidental to the

enjoyment of property, ***".  Brewster, 78 Ill. 2d at 118, 398 N.E.2d at 833.

The ordinance in the instant case is much more burdensome than

the ordinance in Brewster.  The expenditure of time and effort in removing ice and snow from a sidewalk cannot be compared to the time and great expense required to maintain a sidewalk's

alignment, grade and surface.  Further, this type of maintenance

is the obligation of a municipality and it cannot be delegated. 

See Thiede v. Tambone, 196 Ill. App. 3d 253, 553 N.E.2d 817 (1990).  Therefore, the ordinance is unenforceable and the trial

court properly granted Rowe's motion to dismiss.

	Next, the City argues that the trial court abused its

discretion in denying its request to amend its pleadings after

the court granted the motion to dismiss.

	A trial court's denial of leave to amend a complaint will

not be reversed absent a clear abuse of discretion.  Strickland v. Communications and Cable of Chicago, Inc., 304 Ill. App. 3d 679, 710 N.E.2d 55 (1999).  In determining whether the trial

court abused its discretion in denying a request to amend the

complaint, one of the factors a court reviews is whether the

proposed amendment would cure a defect in the pleading.  Loyola Academy v. S & S Roof Maintenance, 146 Ill. 2d 263, 586 N.E.2d 1211 (1992).

	Here, the City's ordinance is unenforceable as a matter of

law.  The proposed amendment could not have changed the outcome

of this case.  Accordingly, the trial court did not abuse its

discretion in denying the City's request to amend.

	The judgment of the circuit court of Rock Island County is

affirmed.

	Affirmed.

	HOMER, P.J., and HOLDRIDGE, J.J., concur.