NOTICE Decision filed 10/0 2/13

. The tex t of this decision may be chang ed or
corr ected prior to the filing of a P et i t i on f or Rehea ring or t he disposition of th e same. 2013 IL App (5th) 120325
NO. 5-12-0325
IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

MERCEDENA BURNS, ) Appeal f rom the ) Circuit Court of Plaintif f -Appellant, ) Madison County

. ) v. ) No. 11-L-245 ) SIMON PROPERTIES GROUP, LLP, ) a/k /a Sim on Property

Group (Illinois), L.P., ) Honorable ) David A. Hy lla, Def endant-Appellee. ) Judge, presiding.

JUSTICE W ELCH delivered the judgm ent of the court, with opinion. Presiding Justice Spom er concurred in the judgment and opinion. Justice Goldenhersh dissented.
OPINION ¶ 1 The plaintif

f , Mercedena Burns, appeals f rom the order of the c i rcuit court of Madison County dism issing her three-count com plaint f iled against the def

endant, Sim on Properties Group, LLP, also known as Sim on Property Group (Illinois), L.P., af ter she f ell in a pothole and sustained injuries in a parking lot at the Alton Square Mall (m all). For the reasons which f ollow, we af

f irm the decision of

the circuit court. ¶ 2 On January 1, 2011, the plaintif f was a custom er at the m all. Af t e r ma k i ng som e purcha s e s , s h e r e t u rned to her car, which was parked in the east parking lot in f ront of the Macy 's store. On her way to the car, she tripped and f ell in a pothole near the rear of her car. The plaintif

f broke two bones in her lef t leg and incurred m edical bills in excess of $90,000. The def endant owned the m all and was responsible f or parking lot m aintenance from 1996 until 2007 when it sold its ownership interest to Coy ote Alton Mall, L.P. (Coy ote).

1¶ 3 On April 19, 2012, the plaintif f f iled an am ended c o mp l a i n t a g a i n st the def endant asserting that she was i n j u r e d by a public nuisance. Count I alleged creation and

m aintenance of a nuisance; count II alleged negligent creation of a nuisance; count III alleged wilf ul and wanton conduct in creation of a nuisance. The plaintif f 's com plaint alleged that f rom 1996 until 2007, the def endant allowed the m all parking lot to f all into disrepair due to lack of m aintenance, that the def endant had a duty to m aintain the m all pa r k i n g lot in a reasonably saf

e condition f

or use by the custom ers of the stores located in the m all, and that the condition of the parking lot continued unabated until af ter the plaintif

f was injured. The

com plaint f urther alleged that the condi tion of the m all parking lot posed an unreasonable

r i s k t o t he saf

ety of the m all custom ers and that the def endant knew of the hazar d o u s condition of the parking lot in 2007 when it convey ed the property to Coy ote and knew, or

was reckless in not knowing, that Coy ote had borrowed heavily and did not have the capital
to r e n o v a t e the parking lot (Coy ote went into receivership in 2011). According to the plaintif f , the def endant was aware that th e p a r k i n g lot was hazardous because there were

num erous f

alls by stor e patrons during the period when the def endant owned the m all. Theref ore, the p l a i n t i f

f concluded that the condition of the east parking lot and the danger it created constituted a public nu i s a n ce and this public nuisance was created by the def endant's failure to maintain the parking lot. ¶ 4 On May 11, 2012, the de f e n dant f iled a m otion to dism iss the plaintif f 's com plaint under section 2-615 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-615 (W est 2010)) and u n d e r s e c tion 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (W est 2010)). In the m otion, the def

endant argued that the plaintif f had f ailed to allege suf

f icient f acts to dem onstrate the existence of a public right, as required to allege a cause of action f or public nuisance, and that the right alleged by the plaintif f , the right not to be n e g ligently injured,

was instead a private right. Alternatively , the def endant argued that it did not owe a duty to

2the plaintif f because it never owned the parking lot where the plaintif f f ell and it d id not
p o s s ess, occupy , or control the parking lot during the tim e that the plaintif f f ell. At t a c h e d to the m otion to dism iss was the af f idavit of Paul Grossm an, senior litigation paralegal f or the def endant, which adm itted that in 2007, the def endant m aintained the parking lots surrounding and belonging to the m all. The af f idavit f urther set f

orth that at no tim e did the def endant own the parcel of land occupied by Macy 's or the east parking lo t o n w h i c h t he plaintif f f ell. The af

f idavit stated that since August 1 , 2 0 0 7 , t h e def endant "has not

m aintained, owned, possessed, or controlled the parking lots surrounding and belonging to [ the m all], including but not lim ited to, the parking lot alleged in Plaintif f 's com plaint." The def endant also attached to i ts m otion inf orm ation f

rom Madison County showing that Macy 's/May Properties was the owner of the parking lot where the plaintif f f ell. Ultim ately , the trial court entered an order dism issing the plaintif f 's com plaint pursuant to section 2-615 of the Code, f

inding that the plaintif

f did not state a cause of action f or public nuisance. The plaintif f appeals. ¶ 5 In reviewing the dism issal of a com plaint under either section 2-615 of the Code (735
ILCS 5/2-615 (W est 2010)) or section 2-619 of the Code (735 ILCS 5/2-619 (W est 2010)),

we apply a de novo standard of review. Dopkeen v. W hitaker , 399 Ill. App. 3d 682, 684 (2010); R-Five, Inc. v. Shadeco, Inc. , 305 Ill. App. 3d 635, 639 (1999). A m otion to dism iss under section 2-615 tests the legal suf f iciency of the com

plaint, whereas a m otion to dism iss under section 2-619 adm its the legal suf f iciency of the com

plaint but asserts an af

f irm ative def ense outside the co mp l a i n t t h at serves to def eat the cause of action. Kean v. W al-Mart Stores, Inc. , 235 Ill. 2 d 3 5 1 , 3 61 (2009). Under either section, we are to accept all wellpleaded f acts as true and draw all reasonable inf erences f rom the f acts in f avor of the

nonm oving party

. Dopkeen , 399 Ill. App. 3d at 684. ¶ 6 A p u b l i c nuisance is def ined as the "doing of or the f ailure to do so me t h i n g t h a t

3injuriously af f ects the saf

ety , health or m orals of the public, or works som e substantial
annoy ance, inconvenience or injury to the public." (Internal quotation m arks om itted.) City of Chicago v. Beretta U.S.A. Corp. , 213 Ill. 2d 351, 370 ( 2 0 0 4 )

. I n o r d e r f or there to be a suf f icient pleading in a public nuisance cause of action, the pleading m ust "allege a right

com m on to the general public, the transgression of that right by the def endant, and resulting injury ." Id. at 369. More specif ically , the pleading m

ust allege f

acts in support of the f ollowing f

our distinct elem ents of a public nuisance clai m: ( 1 ) t h e existence of a public right; (2) a substantial and unrea s o n a b le interf erence with that right by the def endant; (3) proxim ate cause; and (4) injury

. Id. ¶ 7 T h e f

irst elem ent that m

ust be alleged is the existence of a right c o mmo n t o t h e general public. Id. at 370. The suprem e court has def ined "public right" as f

ollows:

" 'The interf

erence with a public right is the sine qua non of a cause of action f or public nuisance. However, not all inter f e r ences with public rights are public nuisances. The nuisance m ust af f ect an interest com

m on to the general public, m ust produce a com mo n i n

j ury , or be dangerous or injurious to the general public, or it

m ust be harm f

ul to the public health, or prevent the public f rom a peacef

ul use of their l a n d a n d t he public streets, or there m ust be som e direct encroachment on publ i c property .' " Id. at 373 (quoting 58 Am . Jur. 2d Nuisances § 39 (2002)).
A public right is " 'collective in nature and not like the individual right that every one has not
to be assaulted or def

am ed or def

rauded or negligently injured.' " Id. (quoting Restatem ent (Second) of Torts § 821B, cm t. g , at 92 (1979)). A nuisance becom es public when it occurs in a public place, or where the public f requently congregates, or where m em bers of the public

are likely to com e within the range of its inf luence. 58 Am

. Jur. 2d Nuisances § 30 (2010). The nuisance is also considered a public nuisance when it af f ects a place where the public has a legal right to go, such as a park, street, or alley , and if the conduc t or condition

4necessarily annoy s, of f ends, or injures those who com e within the scope of its inf luence. Id. However, the nuisance is not a public one if it occurs in a place of busin e s s t o w h i c h an invitee has no public right to go. Id. ¶ 8 In the instant c a s e , t h e p l a intif f identif ied the f ollowing as the public right in her public nuisance claim : the right to have a reasonably saf e m eans of ingress and egress to the

m all stores over the parking lot. In response, the def endant argues that the plaintif f w a s asserting a right not to be negligently injured, which is a private right and not actionable as a public nuisance. ¶ 9 The trial court relied on cases f rom f oreign jurisdictions, a Connecticu t c a s e , W righten

v. Rapid Car W

ash, Inc. , No. 5001056 (Conn. Super. Ct. 2007) (unpublished opinion), and

a f ederal district case f

rom the eastern district of Pennsy lvania, Ricchiuti v. The Home Depot
Inc. , 412 F. Supp. 2d 456 (E.D. Pa. 2005), as support f or t h e d i s m issal of the plaintif f 's

com plaint f or public nuisance. In Ricchiuti , 412 F. Supp. 2d at 460, the Pennsy lvania court concluded that a pothole in a parking lot u s e d by the public was not considered a public nuisance. The court reasoned that a pothole in a parking lot af f ected a def

ined portion of the

com m unity , specif

ically , the users of that particular parking lot. Id. Accordingly , the court concluded that the pothole did not constitute a public nuisance because i t did not af f ect the
" 'com m unity at large' by

interf ering with a public way or create a signif icant hazard to the public." Id. ¶ 10 Here, the trial court agreed with the above reasoning and determ ined that the plaintif f had no public right to b e on the Macy 's parking lot and no public right to have the Macy 's parking lot in a reasonably saf e condition. The court reasoned as f ollows:

" T h e public, in general, are not 'business invitees' sim ply because they have bee n invited f or business, the relationship is established by their phy sical acceptance. *** [ P]ublic rights are generally not rescindable l i k e business invitations. A business

5invitation to be on property can obviously be revoked like any license. Also, public

rights stem f

rom being part of the public and the right f o r p e o p l e to com e onto the parking lot in this case stem s f rom an invitat ion f

or business by private business owners who had shops in the m all. There was no right to be on the property bef ore the businesses extended the invitation, and th e r e w o uld be no right to be on the property af ter the businesses rescinded the invitation." Accordingly , the court concluded that the plaintif f was on t h e M a c y 's parking lot by invi t a t i o n only and had no public right to be there. The court f urther concluded that the plaintif f had no public right to have the parking lot in a saf e condition. ¶ 11 W e agree with the reasoning of the trial court and conclude that the plaintif f was not exercising a right com m on to the publi c a t the tim e that she entered the parking lot f or the
purpose of patronizing Macy 's. The deterioration of the Macy 's parking lot did not af f ect the
"com m unity at large" and instead af f ected a def

in ed segm ent of the com m unity , nam ely , those using the Macy 's parking lot with the intention of entering and exiting the Macy 's store. The plaintif

f asserts that she had a right not to be negligently injured when she used the m all parking lot f

or ingress and egress to the Macy 's store. Howeve r , a s s tated above, a public right is one com

m on to all m em

bers of the general public and is dif f erent f rom the individual right that every one has no t to be negligently injured. W hile m em bers of the public were welcom e to use the parking lot f or access t o the m all stores, they were not entitled to do so by virtue of any right com m on to the general public. Accordingly , we conclude t h a t the plaintif f was not exercising any

public right while on the Macy 's parking lot. ¶ 12 Additionally , the plaintif f argues th a t a c a u s e o f a c tion f or public nuisance is not precluded just because it occur r e d o n privately owned land. In Chicago National League Ball Club, Inc. v. Thompson , 108 Ill. 2d 357, 364-66 (1985), our suprem e court held that a nuisance that existed on W ri g l e y F i e ld, which is privately owned, was a public nuisance

6because i t af f ected the peace and tranquility of the neighborhood. Our suprem e court specif ically stated: "A private nuisance, however, that interf eres with public rights can also constitute a public nuisance." Id. at 3 6 5

. H o w e v e r, we reiterate that the plaintif f was not

e x e r cising a right com m on to the public at the tim e that she entered the parking lot f or t h e
purpose of patronizing Macy 's. Theref ore, we agree w i t h the trial court's dism issal of the plaintif f 's c o mp l a i nt under section 2-615 of the Code (735 ILCS 5/2-615 (W est 2010)) because she f

ailed to state a cause of

action f or public nuisance. ¶ 13 W e note that the def endant f iled a com

bined m otion to dism iss pursuant to sections
2-615 and 2-619 in the trial court. However, the tr i a l c o u r t dism issed the plaintif f 's

com plaint pursuant to section 2-615 and did not address the issues raised in the section 2-619

m otion. In its brief f

iled with this court, the def endant a r g u e s that we can af f irm the trial
court's dism issal on the basis of the section 2-619 m otion. Specif ically , the def

endant argues that it had no duty to the plaintif f because it never owned the parking lot where the plaintif f f ell and it did not possess, occupy , or control the parking lot during the tim e that the plaintif f f ell. The def

endant points to the af

f idavit of Paul Grossm an f or support. According to the af f idavit, the def

endant owned the m all and was responsible f or m aintaining the parking lots surround i n g t h e m all in 2007; the def endant never owned the parcel of land occupied by Macy 's or the east parking lot on which the plaintiff f ell; on August 1, 2007, the def endant sold its entire possessory interest, including all assets and liabilities, to Coy ote; the def endant has not owned, controlled, operated, had possession, or had any possessory i n t e r e st in the

m all or the parking lot since the sale; Coy ote took over the contractual duty to m aintain the

m all, which included the m all parking lot where the plaintif f f ell on January 1, 2011; and the def endant has not been contractually obligated to m aintain the m all or the m all parking lot since August 1, 2007. ¶ 14 In response, the plaintif f argues that the def

endant owed a duty to patrons of the m all

7to provide reasonably saf e access to the m all across the parking lot, which was provided f or that purpose. Further, the plaintif f argues that the def

endant created the public nuisance by its f ailure to m aintain the m all parking lot and the subsequent convey ance of the property to Coy ote does not insulate the def endant f rom liability f or the plaintif

f 's injuries. In support of the a r g u me n t that the def endant had a duty to the patrons of the m all, the plaintif f cites Bangert v. W

al-Mart Stores, Inc. , 295 Ill. App. 3d 418 (1998). In Bangert , 295 Ill. App. 3d
at 420, the plaintif

f , a custom er at a W al-Mart store, brought a negligence action against W alMart f or injuries that she had sustained when she was struck by a vehicle while walking in the parking lot. This court reversed the trial court's granting of sum m ary judgm ent in f avor of W al

- M a r t , f

i nding that W al-Mart had a duty to protect patrons of its parking lot. Id. at 424. This court determ ined that it was reasonably f oreseeable that a m otorist would strike

a cust o me r o f t h e s t ore in the parking lot and that W al-Mart had a duty to m aintain reasonable traf

f ic and/or pedestrian control devices within its parking lot f or the protection of its custom ers. Id. ¶ 15 The plaintif

f f urther argues that the def

endant cannot escape liability by arguing that it lacked control over the parking lot at the tim e of the plaintif f 's injury because control is not

a n e lem ent of a cause of action f or public nuisance. In support, the plaintif f cites Ci t y o f Chicago v. Beretta U.S.A. Corp. , 213 Ill. 2d 351 (2004). In Beretta U.S.A. Corp. , 213 Ill. 2d
at 355-56, the City of Chicago and Cook County b r o u g h t an action f or public nuisance against f irearm m anuf

acturers, distributors, and dealers seeking to recover expenditures f or

em ergency law enf

orcem ent and em ergency m edical services i n c u r r e d as a result of gun violence. One argum ent m ade by the def endants was that Illinois law did not perm it liability
to be im posed f or public nuisance unless the def endant was in control of the instrum entality causing the injury

at the tim e of

the injury

. Id . at 396. The court disagreed and concluded that liability in public nuisance was not necessarily precluded sim ply because the def

endants

8no longer controlled the object that caused the injury

. Id. at 403. Specif ically , our suprem e court explained the f

ollowing with regard to control being an element of public nuisance: "Control is not a separate elem ent of causation in nuisance cases that m ust be pleaded and proven in addition to cause in f act and legal cause. It is, rather, a relevant f actor in both the proxim ate cause inquiry and in the ability of t h e c o u r t to f ashion appropriate injunctive relief

. W hen the nuisance results from a condition or conduct
upon land, control over the l a n d is generally a necessary prerequisite to the imposition of liability

. [ Citation.] However, when the nuisance results f rom the use

or m isuse of an object apart f rom land, or f

rom conduct unrelated to a def endant's use of land, lack of

control of the instrum entality at the tim e of injury is not an absolute bar to liability ." (Em

phasis added.) Id. ¶ 16 In determ ining whether control was a necessary elem ent f o r p u b l i c n u i s a n c e , the
suprem e court distinguished between a nuisance that resulted f rom the use or m isuse of

an object apart f

rom land and a nuisance that resulted f rom a condition or conduct upon land. The present case involves a nuisance that resulted f rom a condition or conduct upon land, and theref ore control over t h e l a n d is generally a necessary prerequisite to the im position of liability f or public nuisance. ¶ 17 Further, the plaintif f cites section 840A of the Restate me n t ( Second) of Torts and

com m ent c as support f

or her position that the def endant cannot escape liability as the creator of the nuisance. Section 840A describes a party 's continuing liability f or a public nuisance af ter transf er of the land:
"A vendor or lessor of land upon which there is a condition involving a nuisance f or which he would be subject to liability if he continued in possession rem ains subject
to liability f

or the continuation of the nuisance af ter he transf

ers the land."
Restatem ent (Second) of

Torts § 840A(1), at 168-69 (1979).

9Com m ent c explains a party 's continuing liability as f ollows: "If the vendor or lessor has him self c r e a t ed on the land a condition that results in a nuisance, he cannot escape liability f or the continuation of the nuisance by selling or leasing the land to another. In these cases it f requently has been sa i d t hat by
t r ansf erring the land with the condition existing upon it he has authorized t h e continuation of the nuisance. This is usually som ewhat f ictitious; and a better reason is that his responsibility toward those outside of his land is such that he is not f ree to
term inate his liability to them f or the condition that he has him self caused or concealed, by passing the land itself on to a third person. The ef f ect of the rule is to require vendors and lessors in order to avoid liability to take reasonable steps to abate existing conditions involving any nuisance b e f o r e they transf

er the land."
Restatem ent (Second) of

Torts § 840A, cm t. c , at 169 (1979). ¶ 18 According to the Restatem ent, a "vendor or lessor of land" that has created a public nuisance on the land cannot escape liabili t y f or the continuation of the nuisance by selling

or leasing the land to another. H o w e v e r , i n this case, the def endant was not a vendor or lessor of the parking lot where the plaintif f was injured. The def

endant neither owned nor leased the east parking lot in 2007 and had no ownership interest or control over the parking lot w h e n the plaintif

f was injured in 2011. Theref ore, the def

endant cannot be considered a "vendor or lessor of

land" as described in section 840A of the Restatem ent and theref ore

c a n n ot be held liable on the basis of public nuisance f or the injuries that resulted f r o m t h e plaintif f tripping over a pothole in the Macy 's parking lot. ¶ 19 Our conclusion is supported by Maisenbach v. Buckner , 133 Ill. App. 2d 53 (1971),

a First Distri c t c a s e
. The def endants in Maisenbach were the f orm er owners of private property which abutted a public way on which a nuisance existed. Id. at 5 4

. T h e mi n or plaintif f suf f ered injuries when he tripped over a chain f ence that surrounded a parkway area

10between a sidewalk and a street. Id

. a t 53. The plaintif f sued the f

orm er owners of the property abutting the parkway because the f orm er owners had m aintained the f ence until the tim e they had sold the property

. Id. However, the f acts indicated that the f

orm er owners did not possess, control, or own either the parkway or the property

abutting the parkway

at the tim e of the injury

. Id. at 54. In his com plaint, the plaintif

f alleged that the f

ence was a public nuisance and that the person who had created a nuisance on a public way which abutted the
creator's property was liable to individuals who were injured as a result of the nuisance even though, at the tim e of the injury , t h e c r eator did not own, possess, or control the property abutting the public way

. Id. ¶ 20 The First District concluded that a f orm er property owner was not liable f or injuries which were sustained af ter the owner ha d s e v e r ed all relationship with the property

con n ected to an alleged nuisance. Id. at 56. The court noted that the def endant had absolutely no interest in the property abutting the parkway at the tim e that the plaintif f was injured and that the plaintif f had not cited any cases in which a "m aintainer of a nuisance was held liable f

or dam ages caused af

ter he had com

pletely divested him self f

rom any connection with the property involved." Id. at 55. The court stated that generally in Illinois, the liability of a landowner f

or injuries occurring in connection with the property ends with the cessation of ownership, possession, and control of the property

. Id. at 56. The court reasoned that the "f ree and unhindered alienation of real property –long the public policy of Illinois–would be seriously and adversely af f ected if property owners were to becom e liable f or personal injuries which occurred long af ter they sold their interest to another party ." Id. Accordingly , the court concluded that where th e l a n d o w n er clearly had no right to control the property af ter he sells it to another, he cannot have any duty t o t h i r d p e r s ons injured in connection with the property

af ter the sale. Id. ¶ 21 In the instant case, like Maisenbach , the def endant had no ownership interest over the

11east par k i n g l o t a t t he tim e that the plaintif f was injured. Further, the def endant had no ownership interest over the east parking lot at the tim e that it was property m anager of the

m all. The def

endant had contracted wit h Macy 's, the owner of the parking lot, to maintain Macy 's section of the parking lot; how e v e r , t h a t contract term inated in 2007, when the def endant sold its interest in the m all to Coy o t e
. Coy ote then resum ed the property

m anagem ent duties of the m all, which included m aintaining the east parking lot. Theref ore,

we agree with the def

endant that the trial court would not have erred if it had dism issed the plaintif f 's com plaint alleging public nuisance pursuant to section 2-619. ¶ 22 For the f

oregoing reasons, the judgm ent of the circuit co u r t o f Madison County is hereby af f irm ed.

¶ 23 Af f irm ed.

¶ 24 JUSTICE GOLDENHERSH, dissenting: ¶ 25 I r e s p e c t f

u lly dissent. In order f

or there to be a suf

f icient pleading i n a p u b l i c nuisance cause of action, the pleading m ust "allege a right com

m on to the general public, the transgression of that right by the def endant, and resulting injury ." City of Chicago v. Beretta U.S.A. Corp. , 213 Ill. 2d 351, 369, 821 N.E.2d 1099, 1113 ( 2 0 0 4 )

. More specif ically , the pleadings m

ust allege f

acts in support o f t h e f

o llowing f

our distinct elem ents of a public nuisance claim : (1) the existence of a public right; (2) a substantial and unre a s onable interf erence with that right by the def endant; (3) proxim ate cause; and (4) injury

. B e r e t t a U.S.A. Cor

p

. , 2 1 3 I l l. 2d at 369, 821 N.E.2d at 1113. The pleading requirem ents are not arduous because the concept of com m on law public nuisance eludes preci s e d e f inition. Gilmore v. Stanmar, Inc. , 261 Ill. App. 3d 65 1 , 661, 633 N.E.2d 985, 993 (1994). The allegations nece s s a r y t o plead a public nuisance m ay be based partly on allegations of

12negligence. Gilmore , 261 Ill. App. 3d at 661, 633 N.E.2d at 993. W hether a public nuisance

exists depends on the f

acts of each case and is a question f or the trier of f

act. Gilmore , 261 Ill. App. 3d at 661, 633 N.E.2d at 993. ¶ 26 Wi t h r e g a r d t o t he f irst elem ent, in order to state a claim f or public nuisance, t h e plaintif f m ust allege the existence of a right com m on to the general public, which includes the rights of

public health, saf

ety , peace, comfort, and convenience. Beretta U.S.A. Corp ., 213 Ill. 2d at 370-71, 821 N.E.2d at 1114 (citing restatem ent (Second) of Torts § 821B(2)(a) (1979)). In her am ended com plaint, plaintif

f alleged that during the period f rom 1996 to 2007, when def

endant owned, operated, and controlled the m all, it had a duty to m aintain the

m all and the surrounding parking lots in a reasonably saf e condition f

or use by custom ers of the stores l o c a t e d i n t he m all to enter or leave the stores. The am ended com plaint also alleged that "[ t]he public were expected and anticipated to use the parking lot as a m eans to
enter or exit the stores" and that def endant "knew at all tim es m aterial hereto that the

c o n d i t i o n of the east parking lot was a danger and hazard to the saf ety of m em

bers of t h e public." ¶ 27 W ith regard to the second elem ent, plaintif f alleged: "The condition of the surf ace of the east p a r king lot and the danger created a public nuisance. It was f oreseeable the condition could cause injury to m em bers of the public." Plaintif f set f orth that def

endant was

on notice due to num erous f alls by patrons of the m all during the period of 1996 to 2007 and also when it conve y e d t h e mall to Coy ote in 2007. Plaintif f also alleged def

endant knew Coy ote was "highly bor r o w e d , without suf f icient capital to renovate the east parking lot."
W ith regard to the third and f ourth elem ents, plaintif

f alleged that as a direct and proxim ate result of the public nuisance, plaintif f tripped and f

ell in a pothole and sustained dam ages as a result. ¶ 28 The trial court dism issed plaintif f 's com plaint pursuant to section 2-615, f inding that

13plaintif

f 's allegations did not state a claim f or public nui s a n c e
. The trial court ruled as a

m atter of law that the lot is not public, but rather private because "[ p]laintif f had no right to be in this parking lot independent of the business invitat i o n and the perm ission to be on it

was revocable. W hile this parking lot m ay be attached to public roads it is distinct f rom them and could be closed to the public b y t h e o wner." However, taking the allegations in the

com plaint as true, which we are required to do, the trial court was prem ature in f inding that there was no public nuisance stated in the com plaint. Def

endant presented no af

f idavits in support of its assertion that the m all parking lot was not a public place. The trial court was
prem ature in m aking this determ ination, and plaintif f was not allowed to adequately develop her theory

of the case. ¶ 29 In Bangert v. W

al-Mart Stores, Inc. , 295 Ill. App. 3d 418, 695 N.E.2d 56 (1998), this
court reversed the trial court's granting of sum m ary judgm ent in f avor of W al-Mart, f

inding that W al-Mart had a duty to protect patrons on its parking lot:
"In the case at bar it was reasona b l y f oreseeable that a m otorist would strike

a custom er/pedestrian. Wal-Mart invited custom ers into its store without providing
any traf f ic/pedestrian control within its parking area. W al-Mart had reason to expect that the f ree m o v e me n t of vehicles and pedestrians would result in injury

. Minor precautionary m easures m ay have prevented this accident." Bangert , 295 Ill. App. 3d at 424, 695 N.E.2d at 59. The public has a right to be protected on the parking lots which provide access to the stores in which they

shop. ¶ 30 Moreover, a public nuisance can occur on privately owned property

. For exam ple, in
C h i cago National League Ball Club, Inc. v. Thompson , 108 Ill. 2d 357, 483 N.E.2d 124 5 (1985), our suprem e court held that a nuisance that existe d o n Wr i gley Field, which is privately owned, was a public nuisance because it af f ected the peace and tranquility of the

14neighborhood. Our suprem e court specif ically stated: "A private nuisance, however, that interf eres with public rights can also constitute a public nuisance." Chicago National League Ball Club, Inc. , 108 Ill. 2d at 365, 483 N.E.2d at 1249. ¶ 31 In the instant case, plaintif f contends that the parking lot where she f ell was littered with potholes and uneven surf aces and had not b e e n ma i n t a ined and that its condition constituted a public n u isance. The trial court's reason f or dism issing the com

plaint that
p l a i ntif f was a business invitee whose invitation could be revoked at any tim e was n o t supported by any Illinois case law

. The court relied on cases f rom f oreign jurisdictions, a Connecticut case, W

righten v. Rapid Car W

ash, Inc. , No. 5001056 (Conn. Super. Ct. 2007) (unpublished opinion), and a f ederal district case f

rom the eastern di strict of Pennsy lvania, Ricchiuti v. The Home Depot Inc. , 412 F. S u p p
. 2d 456 (E.D. Pa. 2005). Def endant has f ailed to cite any Illinois case which holds a pothole in a private lot can never cons titute a public nuisance. I disagree with t h e t r i a l court's analy sis, particularly its reliance on cases f rom f oreign jurisdictions in support of i t s c o n clusion, that a pothole in a private lot can

never constitute a public nuisance. Such a hard and f ast ruling is contrary to our state's policy
to protect patrons f

rom dangerous conditions on parking lots. See, i.e. , W ard v. K mart Corp. , 136 Ill. 2d 132, 554 N.E.2d 223 (1990). ¶ 32 Here, plaintif

f pleaded suf

f icient f acts required in a cause of action based upon public nuisance, specif

ically a right of the public and a corresponding duty on the owner or occupier of the land to have a reasonably saf e m eans of ing r e s s a n d egress, a violation of that right through the creation of conditions posing an unreasonable risk of harm to the public required
to use the l o t i n o r d e r to access stores in the m all, and injury and dam ages proxim ately resulting f

rom the nuisance. M o r e o v e r , even though def endant sold its interest in 2007, it was not necessarily

relieved of

its duty

. ¶ 33 Def

endant asserts that plaintif f 's com plaint f ails to state a cause of action because at

15the tim e of plaintif f 's alleged f

all, def endant had com

pletely divested itself f

rom ownership and control over the m all and the parking lot. However, " [ a] vendor or lessor of land upon which there is a condition involving a nuisance f or which he would be subject to liability if he continued in possession rem ains subject to liability f or continuation of the nuisance af ter he transf ers the land." Restatem ent (Second) of Torts § 840A(1), at 16 8

- 6 9 ( 1 9 7 9 ).
Com m ent c to section 840A of the Restatem ent specif

ically states as f

ollows:

" I f t he vendor or lessor has him self created on the land a condition that results in a nuisance, he cannot escape liability f or the continuation of the nuisance by selling or leasing the land to another. I n t hese cases it f requently has been said that by transf erring the land with the condition existing u p o n it he has authorized the continuation of the nuisance. This is usually som ewhat f ictitious; and a better reason is that his responsibility toward those outside of his land is such that he is not f ree to
term inate his liability to them f or the condition that he has him s e lf caused or concealed, by passing the land itself on to a third person. The ef f ect of the rule is to require vendors and lessors in order to avoid liability to take reasonable steps to abate existing con d i t i o n s involving any nuisance bef ore they transf

er the land."
Restatem ent (Second) of

Torts § 840A, cm t. c , at 169 (1979). "[ L]iability in public nuisance is not necessarily preclude d s i mp l y because def endants no longer control the objects." Beretta U.S.A. Corp. , 213 Ill. 2d at 403, 821 N.E.2d at 1132. ¶ 34 In the instant case, plaintif f alleged def

endant owned t h e ma l l and m aintained the parking lots, including the one in question, f rom 1996 unt i l 2007, during which tim e the pothole in question was created, and knew that Coy ote did not have the m eans to rectif y the parking lot nuisance which led to plaintif f 's injury

. A n a f

f i d avit subm itted by def

endant's

em ploy ee adm itted def

endant m aintained the pa r k i ng lots surrounding the m all in 2007.
W hile def endant did not own the parking lot, it owned the m all where plaintif f shopped prior

16to her f

all and was responsible f

or m aintenance of the parking lot until 2007. Even though

som eone else m ay also be at f ault, def endant is not necessarily absolved of its own liability

. Plaintif f 's theory is that def

endant's lack of m aintenance during its ownership of the m all and control of the parking lot in question created the condition that led to plaintif f 's injury

. ¶ 35 Accepting as true all well-pleaded facts and drawing all reasonable inf erences f rom the f acts in f avor of the nonm oving party , whether the parking lot constituted a public nuisance is a question of f act that should not have been resolved by a m otion to dism iss. Plaintif f should have been allowed the opportunity to conduct discovery and subm it evidence
to support her public nuisance theory , and the trial court im properly ruled as a m atter of law that the pothole did not constitute a public nuisance. ¶ 36 Fo r t h e f

o r e g o i n g reasons, I would reverse the judgm ent of the circuit court and

rem and f or f urther proceedings.

172013 IL App (5th) 120325
NO. 5-12-0325
IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

___________________________________________________________________________________ MERCEDENA BURNS, ) Appeal f rom the ) Circuit Court of Plaintif f -Appellant, ) Madison County

. ) v. ) No. 11-L-245 ) SIMON PROPERTIES GROUP, LLP, ) a/k /a Sim on Property

Group (Illinois), L.P., ) Honorable ) David A. Hy lla, Def endant-Appellee. ) Judge, presiding.

___________________________________________________________________________________ Opinion Filed : October 2, 2013

___________________________________________________________________________________ Justices : Honorable Thom as M. W elch, J.

Honorable Stephen L. Spom er, P.J., Concurred Honorable Richard P. Goldenhersh, J., Dissented

___________________________________________________________________________________ Attorney s John Dale Stobbs, Andrew K. Carruthers, Stobbs, Sinclair & Carruthers, Ltd., for 500 Bond Street, P.O. Box 336, Alton, IL 62002-0336 Appellant

___________________________________________________________________________________ Attorney s Scott D. Bjorseth, David A. Schott, Hoagland, Fitzgerald & Pranaitis, 401 Market for Street, P.O. Box 130, Alton, IL 62002 Appellee

___________________________________________________________________________________