## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Nida v. Spurgeon , 2013 IL App (4th) 130136

Appellate Court Caption MARCI A NI DA, Plaintiff-Appellant, v. MARL ENE SPUR GEON, I ndividually and as Administratrix of the Estate of L ORENE D. HART, Def endant- Appellee

.

District & N o. Four th District Docke t No. 4-13-0136

Filed October 30, 2013

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Summary judgme nt was proper ly enter ed for defe ndant landlord in an action for the injuries p l ai n t i ff suffe red when she was walking on the drivewa y of the proper

ty she had rente d from defe ndant and a piece of the drivewa y broke and she fell, since pl aint iff had been awa re of the deter i o rated condition of the drivewa y from the time she rente d the
proper ty , defe ndant was entitled to presume plaintiff w ould be ca utious when she encounte red the open and obvious condition, plaintiff di d not sug g est how defe ndant could have g uarde d ag ainst the injury
, nor did she claim the drivewa

y violated any housing regulation, and an injury -proof drivewa y could not have been provi d ed
, rega rdless of the materia l or g rade

.

Dec ision Under Review Appea l f rom the Circuit Court of Sang amon County , No. 11-L -194; the Hon. L eo Z appa, Judge , presiding

.

J udg ment Affir med.Counsel on

Appea l J ason B. McGa ry and Hania Sohail (ar g ued), both of Strong L aw Offic es, of Peoria, f

or appe llant.

Craig L

. Unrath and Natal i e D. Thompson (ar g ued), both of Heyl, Roy ster, Voe lker & Allen, of Peoria , for a ppellee.

Panel J USTI CE KNECHT delivere d the judgme nt of the court, with opinion. Presiding J ustice Steigmann and J ustice Turner conc u rr ed in the judgme nt and opinion.

OP INION

¶ 1 On Aug ust 10, 2011, plaintiff, Marc ia Nida, filed a t wo -c o u n t co m p l ai n t ag ainst defe ndant, Marlene Spurg eon, individually and as administratrix of the estate of L orene D. Har t, for injuries suffe red at a renta l proper ty owned by defe ndant. I n November 2 0 12, defe ndant filed a motion for summary judgme nt. I n Fe bruar y 2013, the trial court g rante d the motion for summary judgme nt, concluding defe ndant did not owe a duty of car e to plaintiff. ¶ 2 Plaintiff appea ls, arguing the trial court err ed in g ranting defe ndant’s summary judgme nt motion. Plaintiff contends defe ndant owes her a duty of car e and fac tual issues exis t as to whether a dang erous c ondition was open and obvious and de minimis . We affir m.

¶ 3 I . BA CKGROUND ¶ 4 A. Plaintiff’s Complaint ¶ 5 On Aug ust 10, 2011, plaintiff filed a two-count complaint ag ains t d e f e n d a n t, individually and as administratrix of the estate of Har t, for injuries suffe red at a renta l proper ty owned by defe ndant and located on Gaule Road i n the Villag e of Rochester

. Plaintiff alleg ed, on Aug u s t 2 3
, 2009, she was a tenant at the proper ty and was walking on the proper ty ’s drivewa y when a piece of the drivewa y broke and she fell, injuring herse lf. Plaintiff alleg ed defe ndant was neg lige nt for failing to war n plaintiff ab o u t t h e condition of the drivewa y , failing to repa ir the drivewa y , and permitting the drivewa y to exis t in a “state of disrepair .”

¶ 6 B. D iscovery ¶ 7 1. Plaintif f’s Deposition ¶ 8 At her de position, pl aintiff testified she moved into the house on May 15, 2008. When she moved in, she perf

ormed a w a lk

- th

r o ug h with defe ndant’s children, Robert Spurg eon and L isa Kaiser . During the walk-through, plaintiff aske d about the drive way and Robert “ said

-2-he was g oing to patch [i t] or repla ce it.” Plaintiff dealt with Robert and L isa about the day -today aff airs. Robert “to o k car e of maintenanc e” at the proper ty and delivere d water to the cis tern. S he testi fied she reque sted defe ndant repair the drivewa y “at least five t i m es ” an d her reque sts “we re alway s oral.” She testified Robert repa ired the air conditioning once but did not mention other maintenanc e reque sts. On one occa sion when Robert delivere d water , he “bottomed out” and said “he neede d to g et that drivewa y fix ed or someone’s g oing to

rea lly tear up their ca

r.” Plaintiff testified she or anothe r re sident mowed the g rass a nd she

never attempted to “cle an up or swee p out any of the broken piece s” in the drivewa y

. A
g ara g e and a cattle g ate wer e on the proper ty and defe ndant and her family “we re in and out

on the drivewa

y a lot.” She observe d them use the drivewa y “proba bly 20 [or] 25 times” during the time she lived there . They would use the drivew ay “whe n they

had to come a

nd chec k on the cows, or when they would switch the cows, or if they neede d the g ara g e.” She admitted she stopped paying rent in April 2009 and was g iven an eviction notice in Aug ust 2009. ¶ 9 On Aug ust 23, 2009, she walked down the drivewa y to the mailbox

. The sun was out but she did not know what time of day it was. The drivewa y was made up o f “a sphalt, old asphalt.” She walked in a manner to a void br oken piece s of asphalt, she descr ibed this a s a “zigzag ” route. As she was walking back up the driveway she “stepped on the asphalt, the piece broke, and [her] ankle snapped.” She fell in the are a betwee n a telephone pole beside the drivewa

y and the mailbox at the bottom of the drivewa y

. The broken piece of asphalt was about the size of a f

ootball.

¶ 10 2. Defendant’ s Deposition ¶ 11 Def

endant testified her mother, L orene D. Har t, had lived in the house for 70 y ear s befor e plaintiff moved in. Plaintiff was the first rente r at the house. The drivewa y was never paved and when defe ndant’s fathe r was alive he “would just put bucket tar and swee p it down the drivewa y ” and the n “put pea g rave l on top of it.” I t had bee n more than 10 year s since this had been done. Def

endant’ s adult children, Robert and L isa, wer e responsible for overse eing the proper

ty

. Def endant reta ined the “last say” but most decisions wer e handled by them. They wou l d h ave been able t o take care of resurfa cing the driveway without her approval. She stored a tr actor

and miscellane ous items in a ga rag e on the pr operty

.

¶ 12 3. Lisa K aiser’s Deposition ¶ 13 L isa testified she i s d ef en d an t ’s el dest daug hter and assisted in manag ing the re ntal
proper ty

. The drivewa

y had been “broke up” for y ears an d s h e d escr ibed it as being loose
g rave l next to the road and then “aspha lt cr u mbles up throug h the drivewa y .” She never consi d er ed t h e p i eces of broken asphalt to be hazardous or a dang er. She went on to the
proper ty with her son to repa ir a piece of soffit, and she “mig ht g o into the g ara g e to g et stuff beca use we had stuff out there that was left from m y grandmother ’s house.” She did not know whether plaintiff reque sted Robert to repa ir the drivewa y and she had “neve r hear d him
say that the drivew ay

had to be r epair ed bec ause of [pl aintiff’s] reque st.”

-3-¶ 14 C. Defe ndant’s Motion for Summary J udg ment ¶ 15 I n November 2012, defe ndant filed a motion for summary judgme nt. Def endant argued (1) she did not owe a duty of car e b ec au s e p l aint iff fell in a public rig ht-of-w ay , (2) the drivewa y conditio n wa s o p en and obvious, and (3) “plaintiff has failed to produce any evidenc e that the br oken piece of aspha lt is any thing other

than ‘ de minimus .’ ” D efe ndant attache d an aff

idavit from Kaiser
, a survey plat of the proper ty , and, later, a copy of the lease

. ¶ 16 Kaiser ’s aff

idavit states (1) she is “fa

miliar with the plat of the subject proper ty”; (2) she “per sonally perf

ormed a measure ment in this case of the distance betwee n Gaule Road and the location of the utilit y pole on the proper ty ”; (3) “[t] the distance betwee n the utilit y pole and the mailbox in this case is 8.5 fee t”; and (4) “[c]omparing that distance with the distance

on the pl at of survey

of t he subj ect property indicates that the area where plaintiff fell was within the rig ht-of-w ay owned by Rochester Township in this case

. This is beca use the rig htof-wa y extends 40 fee t north of Gaule Road which would include the are a encompa ssed by the utilit y pole. Given that the plaintiff alleg edly fell betwee n the utilit y pole and the mailbox

o n Ga ule Road, it indicates that plaintiff would have fallen on the rig ht-of-w ay proper ty owned by Rochester

Township.” ¶ 17 The lease provides for monthly rent of $550. I t does not include a provision stating who is responsible for repa irs but states t he security deposit would be re funded if, a mong othe r things, “ an inspec tion shows no damag e beyond ordinary wea r and te ar.”

¶ 18 D. The Tr ial Court’s Orde r ¶ 19 I

n F e b r u a r y 2013, the trial court issued its written order and g rante d defe ndant’s summary judgme nt motion. The court found the case prese n t ed n o question of materia l fac t the drivewa y ’s defe ct was conce aled from plaintiff and no evidenc e defe ndant “took any eff orts to control or make any repa irs on the subject d ri vewa y prior to the fall.” I t found the “evide nce is undisputed in this case that the are a wher e plaintiff fell was on a public rig ht-ofway .” I t conclude d as a matter of law (1) the condition was open and obvious, and (2) the de minimis rule applies based on the fac t it was a rura l drivewa y and “the specula

tive nature of plaintiff’s testimony

about the size of the alleg ed def ect.” ¶ 20 This appea l followed.

¶ 21 I I . ANALYSI S ¶ 22 Plaintiff appea ls, arguing the trial court err ed in g ranting d e f e n d a nt’ s mo ti o n f

o r summary judgme nt. Plaintiff argues defe ndant owed her a duty of car e beca use (1) “a priv ate landowner owes a duty of car e to provide a rea sonably safe means of ingr ess and eg ress from their proper

ty ,” (2) defe ndant (a) made a promise at the time of t h e l ea s e to repa ir the condition of the drivewa

y an d (b ) v oluntarily undertook to rende r a service to repa ir the drivewa y , (3) the condition was not open and obvious, and (4) the de minimis rule does not apply

. Def

endant argues she did not owe plaintiff a duty beca use (1) wher e plaintiff fell was located in a public rig ht-of-w ay , (2) she had no obligation to repa ir or maintain the drivewa y , (3 ) t h e condition of t he driveway was obvious and ex isted at t he ti me of the l ease , and ( 4 )

-4-plaintiff “fa iled to produce any evidenc e that the broken piece of asphalt was any thing other than de minimis .” ¶ 23 We consider the parties’ specific arguments as interre lated issues aff ecting a landlord’ s duty of car e to a

tenant. We addre ss the m a ccor dingly and conclude defe ndant did not owe a duty of ca re to plaintiff.

¶ 24 A. Standard of Review ¶ 25 Section 2-1005 of the Code o f C i v i l P ro cedur e provides summary judgme nt shall be
g rante d “if the pleading s, depositions, and admissi ons on file, t og ether with the affidavits, if any , show that there is no g enuine issue as to a ny materia l f

act and that the moving party is entitled to a judgme nt as a matter of law.” 735 I L CS 5/2-1005 (West 2012). “The purpose of summary judgme nt is not to tr y a question of fac t but simply to deter mine if one exis ts.” Forsythe v. Clark USA, Inc.
, 224 I ll. 2d 274, 280, 864 N.E.2d 227, 232 (2007). “In deter mining whether a g enuine issue as to any materia l fac t exis ts, a court must construe the pleading s, depositions, admis s i o n s , and affidavits strictly ag ainst the m ovant and liberally in favor of the opponent.” W i l l i a ms v. Manche

ster , 228 I ll. 2d 404, 417, 888 N.E.2d 1, 9 (2008). “I f the undisputed materia l fac ts could lead rea sonable observe rs to diverg ent infere nces, or wher e there is a dispute as to a m at er ial fac t, summary judgme nt should be denied and the issue decide d by the trier of fac t.” Forsythe
, 224 I ll. 2d at 280, 864 N.E.2d at 232. “I f the plaintiff fails to establish any element of the cause of action, summary judgme nt fo r the defe ndant is proper .” W illiams
, 228 I ll. 2d at 417, 888 N.E.2d at 9. A trial court’s
g rant of summar

y judgme nt is reviewe d de novo

. Id.

¶ 26 B. Ele ments of Neg lige nce a nd Duty ¶ 27 To succe ed in a n action for neg lige nce, the plaintiff must establish the defe ndant owed

a duty to the plaintiff, the defe ndant brea ched his or her duty
, and the brea ch proxi mately

cause d injury to the plaintiff. Choate v. Indiana Harbor Belt R.R. Co.
, 2012 I L 112948, ¶ 22, 980 N.E.2d 58. “In any neg lige nce action, the court must fir st de termine as a matter of la w whether the defe ndant owed a duty to the plaintiff.” Id. ¶ 34, 980 N.E.2d 58. I n deter minating whether a duty of care exis ts, I llinois courts ty pically consider: “(1) the rea sonable fore seea bility of injury ; (2) the likelihood of injury ; (3) the mag nitude of th e b u rd en of
g uarding ag ainst injury ; and (4) the conseque nces of placing that burden on the defe ndant.” W ilfong v. L.J. Dodd Constructi o n , 401 I ll. App. 3d 1044, 1051-52, 930 N.E.2d 511, 519 (2010); LaFeve r v. Kemlite Co.
, 185 I ll. 2d 380, 389, 706 N.E.2d 441, 446 (1998). “Abse nt

a duty
, ‘no rec overy by the plaintiff is possible as a m at t er o f law.’ ” Choate
, 2012 I L 112948, ¶ 22, 980 N.E.2d 58 (quoting Vesey v. Chicago Housing Authority
, 145 I ll. 2d 404, 411, 583 N.E.2d 538, 541 (1991) ).

¶ 28 C. A L andlord’s D uty of Care , Gene rally ¶ 29 I t is well settled in I llinois a landlord is not liable to a tenant for injuries caused b y a defe ctive or dang erous con d i t i o n , exis ting when the lessee took possession, on premises

-5-lease d to a tenant, and under the t enant’ s control. Rowe v. State Bank of Lombard
, 125 I ll.

2d 203, 220-21, 531 N.E.2d 1358, 1366 (1988). This rule is based on the principle the lease transfe rs the lessor’s control over the proper ty to the lessee. Id. at 221, 531 N.E.2d at 1366; W right v. Mr. Quick, Inc.
, 109 I ll. 2d 236, 238, 486 N.E.2 d 9 0 8
, 9 09 (1985). There are

s ev er al exceptions to this rule, and a landlord may be liable wher e “ ‘(1) a latent defe ct exis ted at the time of the leasing which lessor s h o u l d h av e k nown about; (2) [t here is] a fraudulent conce alment by a landlord of a dang erous condition; (3) the defe ct ca u s i n g t h e harm amounts to a n u i s an ce; (4) the landlord makes a promise to repa ir a condition at the time of leasing ; *** (5) the landlord violates a statutory require ment of which tenant is in the class desig ned to be protec ted and the resulting harm is rea sonably fore seea ble’ ” ( Bybe e v. O’Hage n , 243 I ll. App. 3d 49, 51, 612 N.E.2d 99, 101 (1993) (quoting Moreno v. Balmoral Racing Club, Inc.
, 217 I ll. App. 3d 365, 367, 577 N.E.2d 179, 180-81 (1991)) ); or “ ‘(6) the landlord voluntarily underta kes to rende r a service ’ ” ( Gilley v. Kiddel
, 372 I ll. App. 3d 271, 275, 865 N.E.2d 262, 267 (2007) (quoting Klit zka v. Hellios
, 348 I ll. App. 3d 594, 598, 810 N.E.2d 252, 256 (2004)) ). I f the landlord r etains control of the lease d premises the g ener al rule does not appl y , an d t h e landlord “has the duty
, as t he party in control, t o use ordinary

car e in ma intaining that part of the premises in a rea sonably safe condition.” Rowe
, 125 I ll. 2d at 220, 531 N.E.2d at 1366.

¶ 30 D. Def endant’ s Duty

of Care to Plainti ff ¶ 31 1. Plaintif f’s “Ingress and Egress” Argument ¶ 32 Pl ai n t i ff re l i es on Cooley v. Makse
, 46 I ll. App. 2d 25, 196 N.E.2d 396 (1964), a nd McD onald v. Frontier Lanes, Inc.
, 1 I ll. App. 3d 345, 272 N.E.2d 369 (1971), in support of her argument defe ndant, as a landowner
, owed a duty to provide a rea sonably safe means of ingr ess and eg ress fr om the proper ty

. I n Cooley
, the plaintiff fell over some loose bricks in

a walkwa y leading from the defe ndant taver n’s front door to a city sidewalk. Cooley
, 46 I ll. App. 2d at 26, 196 N.E.2d at 396. The Second District stated “the duty of the defe ndants to

use due car e not to neg lige ntly injure invitees upon their premises car ries with it a corollar

y duty to g et such invitees safe ly on or off their premises.” Id. at 30, 196 N.E.2d at 398. Thus, the taver n “[h] aving presc ribed the route to [i ts] invitees for ingr ess and eg ress to and from [i ts] building,” ow ed a duty to warn or

repa ir a known, da

ng erous c ondition. Id. at 31, 196 N.E.2d at 398. I n McD onald
, the plaintif f ex i ted the defe ndant bowling alley and walked

acr oss the parkinglot and approa ched her car, which was parked on the stree t. McD onald
, 1 I ll. App. 3d at 350, 272 N.E.2d at 372. On crossing the sidewalk, the plaintiff stepped onto

a g rassy parkw ay and into a hole. Id. The Second District cited Cooley and ag ree d the duty
to provide a rea sonably safe means of ingr ess and eg ress can extend “beyond t h e p re cis e boundarie s” of the premises owned or controlled by the inviter. Id. at 351, 272 N.E.2d at 372. The appellate court conclude d the duty “def endant owed to plaintiff was to exercise the car e of a pr udent man to provide r easona bly safe means of e g ress fr om its premises a nd to give its invitee adequate war

ning of those dang ers known to defe ndant which wer e not appar ent.” Id. at 353, 272 N.E.2d at 374. ¶ 33 Plaintiff asks too much from Cooley and McD onald

. These case s framed their holdings

-6-as an exten s i o n of the duty owed to an invitee to provide a rea sonably safe premises and

conce rned an owner ’s or occupie r’s appropr iation of an adjac ent public sidewalk for his or her own use. Our case is quickly distinguishable; plaintiff was a tenant, not a visitor to a business establishment, and the alleg ed injury occur red on a drivewa

y , not a public sidewalk. Fur ther, plaintiff focuse s on the word “landowne r” and conclude s defe ndant, as a landowner
, must owe a duty to provide a rea sonably safe means of ingr ess and egress. Howeve r, the rule
not only applies to a “landowne r,” but also the party in possession of the premises. Stedman

v. Spiros
, 23 I ll. App. 2d 69, 81, 161 N.E.2d 590, 596 (1959). In other wo rd s , t h e ru l e plaintiff relies on states a party in possession has a duty to provide a rea sonably safe means of ingr ess and eg re s s

. By operation of the lease
, plaintiff, as the lessee, is the party in possession. This conflict may explain why plaintiff has not provided a single case extending Cooley or applying this rule to impose liability on a landlord for injuries sustained by a tenant on or about the le ased pr emises. We decline pla intiff’s invitation to do so here.

¶ 34 2. Defendant’ s “Right-of-W

ay” Argument ¶ 35 I n her summary judgme nt motion, defe ndant’s main argument was she did not owe a ny duty to plaintiff beca

use the fall o cc urre d in a public rig ht-of-w ay

. Be fore this court, defe ndant ar g ues “it i s clea r t hat [ she] did not own the prope rty wher e [plaintiff] allege dly fell” and “the evidenc e contra dicts [t he] bald conclusion” plaintiff fell in a private drivewa y

. Def endant relies on Kaiser ’s aff idavit and the survey plats for her contention plaintiff fell in

a rig ht -of-way owned by the Rochester Township. She relies on Nicholson v. City of Danville
, 147 I ll. App. 3d 682, 498 N.E.2d 273 (1986), and Gilmore v. Powers
, 403 I ll. App. 3d 930, 934 N.E.2d 564 (2010), in support of her argument she owes no duty based on wher e plaintiff fe ll. Defe ndant’s ar gument is unpersuasive. ¶ 36 First, our revie w of Kaiser ’s aff idavit shows sever al defic iencies. The aff idavit pr ovides the distance betwee n the utilit y pole and the mailbox
, but does not provide (1) the direc tion of the measure ment, (2) the distance betwee n the utilit y pole and the road, or (3) the distance betwee n the mailbox and the r oad. This information is nec essar y to determine the distance the utilit y pole is from the road and whether such are a is within the rig ht-of-w ay

. (We decline
to consider the diag ram drawn by defe ndant’s attorney at plaintiff’s deposition to deter mine the direc tion of the utilit y pole. At the deposition, defenda nt’s attorney

ag ree d the diag ram was not to scale and it was “ not going to de pict the exact g raphic location on the drive way wher e she fell.”) Fur

ther, the aff

idavit states “the rig ht-of-w ay extends 40 fee t north of Gaule Road” but the survey plat appea rs to ref lect the 40-foot m ea s u re m ent extends from the middle of the roa d and not the edg e of the road, as Kaiser ’s af fidavit implies. This leads to

a g ener al question of whether Kaiser is competent to testif y about a survey plat wher e the aff idavit does not state she has any experience o r t ra i n i n g i n survey ing. See I ll. S. Ct. R. 191(a) (ef f. J an. 4, 2013) ( aff

idavit “shall aff

irmatively

show that the affiant, i f sworn as a witness, can te stify competently there to”). Moreover, the aff idavit contains the conclusion plaintiff fell in the rig ht-of-w ay , and without the distance betwee n the utilit y pole and road there is no basis for this conclusion. See I l l

. S

. Ct. R. 191(a) (ef f. J an. 4, 2013) (af

fidavit “shall not consist of conclusions but of fac ts admissible in evidenc e”)

. I n short, the aff idavit provides littl e fac tual evidenc e other than the distance betwee n the pole and the mailbox
, and

-7-this is not enough to conclusively resolve where plaintiff fe ll. ¶ 37 Second, defe ndant’s relianc e on Nicholson and Gilmore is misplaced. I n Nicholson , the plaintiff fell while walking on a sidewalk adjac ent to a drive-in theater and public highw ay in Danville. Nicholson
, 147 I ll. App. 3 d at 6 84, 498 N.E.2d at 273. The parties provided evidenc e from Danville’s city eng ineer
, commission er of streets and public works, two eng ineer s from the I llinois Depa rtment of Tra

nsportation, and an a ffidavit fr om a surveyor showing the sidewalk was within the highw ay ’s rig ht-of-w ay and t he state maintained the

are a next to the sidewalk. Id. at 685-87, 498 N.E.2d at 274-76. This court aff irmed summary judgme nt in favor of the theater’s owner be cause , while the evide nce show ed he sw ept the sidewalk while the theater was operating, he “had discontinued his voluntarily assumed duty prior to the t ime of [ the pl aintiff’s] acc ident.” Id. at 691, 498 N.E.2d at 278. I n Gilmore
, a

mover was trave rsing a walkwa y which crosse d over a public parkw ay , a g rassy are a betwee n the street and sidewalk, when she fell. Gilmore
, 403 I ll. App. 3d at 931, 934 N.E.2d at 565. The defe ndants cut the g rass and rake d leave s in the parkw ay , but argued the are a was owned by the city
, an d t h ey assumed no duty to maintain the walkway

. Id. at 931-32, 934 N.E.2d
at 566. The First District reiter ated “an abutting landowner may be held responsible for the condition of a public sidewalk or parkw ay if he assumes control of it for his own purposes.” Id. at 933, 934 N.E.2d at 567. But “the appellate court has found that no duty to maintain the city -owne d proper

ty exis ts wher e the landowner mere ly maintains the proper ty by mowing
g rass or shoveling and salti ngit in the winter.” Id. at 933-34, 934 N.E.2d a t 568. The F irst District went on to note its and the Second District’s disag ree ment with this court’s decision in Smith v. Renge l
, 97 I ll. App. 3d 204, 422 N.E.2d 1146 (1981), “w h i ch holds that a landowner assumes control over city -owne d proper ty mere ly by mowing it and shoveling it.” Gilmore
, 403 I ll. App. 3d at 935-36, 934 N.E.2d at 569. See Burke v. Gri llo
, 227 I ll. App. 3d 9, 17, 590 N.E.2d 964, 969 (1992) (Second District); Evans v. Koshgarian
, 234 I ll. App. 3d 922, 925, 602 N.E.2d 27, 29 (1992) (F irst District). ¶ 38 I n our case , there are sever al distinctions with Nicholson and Gilmore : (1) Neither case addre ssed the duty of car e owed by a landlo rd to a tenant for injuries sustained on the landlord’s prope rty or adjac ent public proper ty

. (2) Neither case holds a private la ndowner has no responsibility for publicly owned are as, as defe ndant s u gg ests, but rathe r a private landowner may be liable if the landowner controls the publicly owned are a. (3) The evidenc e in Nicholson included testimony from public officia ls and surveyors with knowledg e about the sidewalk’s location in a rig ht-of-w ay and who was responsible for maintaining the are a, and in Gilmore it was undisputed t h e acc ident occur red on a publicly owned parkw ay

. As discussed above
, Kaiser ’s aff idavit is insufficient to determine where the fa ll occurr ed and whether this was in a rig ht-of-w ay

. (4) The falls in Nicholson and Gilmore occur red on a sidewalk, n o t a ru ral drivewa y

. (5) There is no evidenc e the township maintained the drivewa y or any member of

the g ener al public used the drivewa y

. Rather, in the light most favor able to plaintiff, the evidenc e ref lects the drivewa

y was used exclus i v el y t o acc ess defe ndant’s private prope rty and was built for such purpose. In short, defe ndant’s position she has no duty based on the asserted fact t he driveway crosses over a public rig ht-of-w ay is not supported; rathe r, Nicholson and Gilmore support the position def endant might have a duty , even if

the drivew ay

crosse s a public rig ht-of-w ay

.

-8-¶ 39 3. Does the G eneral Rule B ar Plaintif f’s Claim? ¶ 40 We have reje cted plaintiff’s at t em p t t o ex pand a landlord’s duty to include a duty to

rea sonably maintain a safe means of ingr ess and eg ress and defe ndant’s arg ument she owes

no duty beca

use the drivewa

y crosse s a public rig ht-of-w ay

. We return to the g ener al rule a landlord is not liable for injuries cause d by a defe ctive o r dang erous condition on the premises lea sed to and unde r the tena nt’s control and whether

an exception applies.

¶ 41 a. De fenda nt’s Control ¶ 42 Plaintiff contends defe ndant controll ed the drivewa y beca use (1) she “alter ed not only the phy sical materia l comprising the drivewa y , but the g rade of the drivewa y itself”; and (2) defe ndant, or her ag ents, made wee kly deliverie s of water to the renta l house’s cister n. We note pl aintiff testi fied defenda nt , o r h er family
, used t he driveway approximately 20 to 25 times to acc ess the proper ty and a g ara g e; defe ndant and Kaiser both te stified a g ara g e was used for storag e; and Kaiser testified she went onto the proper ty to acc ess this g ara g e. Pl ai n t i ff does not arg

ue this shows defe ndant reta ined control and we need not consider
arguments not made. ¶ 43 Her e, the lease contained no provision stating defe ndant reta ined control of or restric ted
p l aint iff’s use and enjoy ment of the drivewa

y

. Whether defe ndant made chang es to t h e drivewa y after plaintiff m oved off the property is distinct from whether she controlled the drivewa y when plaintiff lived there

. See Herzog v. Lexington Townshi p , 167 I ll. 2d 288, 300- 01
, 657 N.E.2d 926, 932 (1995) (evide nce of postacc ident reme dial measure s is not admissible to prove prior neg lige nce but may be admissi ble t o prove ownership or control of proper ty). Def endant’ s wee kly deliverie s of water for use in the cistern shows defe ndant used the d riv e w a y f o r p la in ti f f’s benef it–to ensure plaintiff had water –not that she maintained control over the drivewa

y

. I n other words, by opera tion of the lease
, defe ndant was no longe r in control of the lease d premises and no evidenc e indicates defe ndant reta ined control of the drivewa y . The g ener al liability

rule a pplies.

¶ 44 b. Ex ceptions to the Ge nera l Rule ¶ 45 Plaintiff contends two exceptions apply as defe ndant, or her ag ents, (1) made a promise
at the time of leasing to repa ir the drivewa y and (2) voluntarily undertook to rende r a service
to r epair the drivewa

y

. Plaintiff doe s not indicate whether the promise to r epair was befor e

or afte r she signe d the lease

. De fe n d an t ar g ues any promise to repa ir (1) made prior to or contempora

neous with the lease and not included in the lease would be inadmissible and (2) made a fter the lease would be unenf orce able be cause it was without consideration. ¶ 46 Gene rally
, a landlord is not require d to make any repa irs to the lease d proper ty unless he

or she ag ree s to do so by the terms of some express covena nt or agreement. Garcia v. Jiminez
, 184 I ll. App. 3d 107, 113, 539 N.E.2d 1356, 1359 (1989). Howeve r, a tenant’s

co v en ant to keep the premises in repa ir cover s ordinary repa irs and not “ ‘re newal s an d replace m en t s which would last a lifetime.’ ” Quincy Mall, Inc. v. Kerasotes Showplace

-9-Theatres, LLC
, 388 I ll. App. 3d 820, 824, 903 N.E.2d 887, 890 (2009) (quoting Sandelman

v. Buc key e Re alty, Inc. , 216 I ll. App. 3d 226, 230, 576 N.E.2d 1038, 1040 (1991))

. ¶ 47 The lease is silent about repa irs to the proper ty and does not contain a provision stating defe ndant promi sed to repa ir the driveway

. I n her deposition, plaintiff t estified (1) she di d

a walk-through of the proper ty befor e moving in and Robert told her “he was g oing to patch [t he drivewa

y ] or repla ce it,” (2) she orally reque sted the drivewa y be repla ced “at least five times,” (3) she hear d Robert say “somebody ’s car was g oing to g et tore up” on the drivewa y , a n d ( 4 ) Ro b ert repa ired the air conditioning. Considering the drivewa y ’s condition at the time of leasing
, the expense, and the perma nence of a drivewa

y repa ir, such a repa ir would not be something a residential tenant would be expected to repa ir. But no evidenc e s u gges ts defe ndant beg an a repa ir to the drivewa y befor e plaintiff’s alleg ed injury
, and we can quickly dismiss plaintiff’s voluntary undertaking arg ument. Def

endant ’s contention the parol evidenc e rule would bar introduction of the promise assumes a promise to repa ir is contra ry to the lease
, but here the lease does not contain a repa ir provision and the parties’ deposition testimony ref

l ec ted defe ndant, or her children, perf ormed repa irs to the proper ty during plaintiff’s tenanc y

. See Hurt v. Pershing Mobile Home Sales, Inc.
, 83 I ll. App. 3d 724, 726, 404 N.E.2d 842, 843 (1980) (ora l promise “dire ctly contra ry to the t erms of the lease ” unenfor cea

ble as a m at t er of substantive law beca use of the parol evidenc e rule); Midway Park Saver v. Sarco Putty Co.
, 2012 I L App (1st) 110849, ¶ 22, 976 N.E.2d 1063 (par ol or extrinsi c evidenc e will not be admitted to vary or add to the terms of the contra ct wher e the
terms of a contra ct are clea r). Def endant is corr ect the promise would not be binding without consideration, but plaintiff’s promise to pay rent could satisfy as consideration if the promise was made befor e the lease

. See McIn er n ey v. C harter Golf, Inc.
, 176 I ll. 2d 482, 487, 680 N.E.2d 1347, 1 3 5 0 (1997) (defining “conside ration”)

. I n short, in the l ight most favor able to plaintiff we must assume such a promise was ma de.

¶ 48 4. W as the Condition “ Open and Obv ious”? ¶ 49 Plaintiff contends “it is clea r that the nature of the piece of asphalt that broke when [she] stepped onto it” was not open and obvious as a matter of law. She posits fac tual issues exis t whether (1) the defe ctive condition was “appa rent” and (2) the condition and risk would be

rec og nized by a rea sonable person. Plaintiff’s arg ument distinguishes betwee n the “visibly unbroken, appar ently safe piece of asphalt” and the drivewa y as a wh o l e. T h i s is
unpersua sive. ¶ 50 The open-a

nd-obvious doctrine is an excep t i o n t o t h e gen era l duty a landowner or occupie r owes to invitees. Olson v. W illiams All S

ea s o n s Co. , 2012 I L App (2d) 110818, ¶ 42, 974 N.E.2d 914; see W ard v. K mart Corp.
, 136 I ll. 2d 132, 150-51, 554 N.E.2d 223, 231-32 (1990). I t “ play s a larg e role in whether a duty exis ts beca use it relates to the issues of fore seea

bility and likelihood of injury .” W ilfong
, 401 I ll. App. 3d at 1052, 930 N.E.2d at 520; see also Buerke tt v. Illinois Power Co.
, 384 I ll. App. 3d 418, 422, 893 N.E.2d 702, 709 (2008) (“it is not fore seea

ble that an invitee will be injured when the condition is obvious or known”)

. “A condition is open and obvious wher e a rea sonable person i n t h e plaintiff’s position, exercising ordinary perc eption, intelligenc e, and judgme nt, would rec og nize both

-10-the condition and the risk involved.” Olson
, 2012 I L App (2d) 110818, ¶ 42, 974 N.E.2d 914.

Known conditions are treated as obvious conditions and “[a] condition is ‘known’ wher e the plaintiff has ‘ “not only knowledg e of the exis tence of the condition or activity itself, but also
appre ciation of the dang er it involves.” ’ ” Belluomini v. S t r a t f ord Gree n Condominium Ass ’n
, 3 4 6 I l l

. App. 3d 687, 694, 805 N.E.2d 701, 707 (2004) (quoting Deibert v. Bauer Brothers Construction Co.
, 141 I ll. 2d 430, 435, 566 N.E.2d 239, 241 (1990), quoting Restatement (Second) of Torts § 343A cmt. b
, at 2 1 9 (1 965)). “Where there is no dispute about the phy sical nature of the condition, whether a dang er is open and obvious is a question of law.” Choate , 2012 I L112948, ¶ 34, 980 N.E.2d 58. ¶ 51 I n W

ilfong
, the plaintiff was walking to a construction site and had to step in a nd out of
ruts made by vehicle tires. W ilfong
, 401 I ll. App. 3d at 1047, 930 N.E.2d at 516. He stepped out of one rut into another rut which g ave way , and he fell. Id. at 1048, 930 N.E.2d at 516. The appellate court reje cted the plaintiff’s contention neither he nor any rea sonable person could know “the particula r rut he fell in would collapse.” Id. at 1053, 930 N.E.2d at 521. The Second Dist rict fr am ed the question as “whether a reasonable person would anticipate the dang er of crossing over the ruts” and conclude d a rea sonable person would have “re alize[ d] that walking acr oss the ruts on the site would p re s en t t h e dang er of a rut collapsing or of tripping or

otherwise f

alling.” Id. at 1054, 930 N.E.2d at 521. ¶ 52 Our question is not whether a rea sonable person would anticipate the dang er of stepping

on a single
, unbroken piece of asphalt, as plaintiff asser ts, but whether a rea sonable person would anticipate the dang er of walking on a visibly broken drivewa y

. The phy sical condition of t he driveway

was de scribed a s having an incline, be ing c onstructed pr imarily of asphalt with broken piece s of asphalt and g rave l, and having not been repa ired for many y ear s. Take n in the light most favor able to plaintiff, we assume the drivewa y was dang erous. Plai ntiff testified at her deposition she was awa re of the drivewa

y ’s condition when she moved to the
proper ty in May 2008, she made five reque sts for the drivewa y to be repa ired, and she used

a “zigzag ” route up and down the drivewa y to avoid the broken piece s. Plaintiff, by her own testimony , knew a

bout the drivewa

y ’s condition and proc eede d to use it. This is not a case wher e the condition had never been seen befor e or was hidden, and plaintiff does not asser t any exception to the open-a nd-obvious doctrine applies. See Buchak lian v. Lake County Family Y oung Men’

s Christ ian Ass’n
, 314 I ll. App. 3d 195, 202, 732 N.E.2d 596, 601 (2000) (plaintiff had not previously seen elevation differ ence in locker room floor mat); Olson
, 2012 I LApp (2d) 110818, ¶

43, 974 N.E.2d 914 (c oncluding fac t issue exi sted wher e testimony varie d about visibil ity of drop-of f in war ehouse floor); W

ilfong
, 401 I ll. App. 3d at 1054, 930 N.E.2d at 521 (discussing the “dist rac tion” and “deliberate encounter” exc ep t i o n s ). I t was open and obvious to plaintiff the whole drivewa y was in poor condition. Plaintiff was under the same obligation imposed on any person trave rsing the drivewa y to use ordinary
perc eption, intelligenc e, and rea sonable car e for her own s afe ty

. Such a person would understand the risks associate d with walking on an asphalt drivewa y with an incline, observe broken piece s of asphalt as an indication the drivewa y may continue to deter iorate and g ive
way , resulting in a fall, and selec t an alternate route or means of conveyance if the drivewa y was not suitable for

pedestria n use.

-11-¶ 53 5. Defendant Did Not Owe Plaintiff a Duty of Car e

¶ 54 We return to our overa rching duty analy sis. Def endant, or h er ch i l d re n , m ay h av e promised to repa ir the drivew ay , but it is undisputed plaintiff was a war e of the drivewa

y ’s condition and she continued to walk on it. Def endant could not have fore seen plaintiff would injure herself and was entitled to presume plaintiff would exercise caution when
encounte ring an open and obvious condition. Plaintiff does not offe r how de fenda nt could have g uarde d ag ainst this injury

. Plaintiff did not asser t the drivewa

y violated any applicable local, state, or fede ral housing regulation–this being an exception to the g ener al landlordliability rule. Def

endant could not have provided an injury -proof drivewa y reg ardle ss of the materia l or gra de. W e decline t he invi tat i o n t o require her to provide such a driveway in a

rura l setting. We conc lude def endant did not owe a

duty to plaintiff.

¶ 55 I I I . CONCL USI ON ¶ 56 We affir

m the trial court’ s judgme nt.

¶ 57 Affir

med.

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