The Fifth District Appellate Court has affirmed Madison County Chief Judge David Hylla’s dismissal of a shopper’s slip and fall lawsuit against Alton Square Mall.

Justice Thomas Welch delivered the judgment of the court. Presiding Justice Stephen Spomer concurred in the judgment and opinion. Justice Richard Goldenhersh dissented.

Plaintiff Mercedena Burns filed a three count complaint against Simon Properties Group after she fell in a pothole in the parking lot outside of the Macy’s store at the Alton Square Mall on Jan. 1, 2011. She allegedly sustained two broken bones in her left leg and incurred more than $90,000 in medical bills.

According to the 2012 amended complaint, Burns alleged the defendant created and maintained a public nuisance. She blamed the defendant for allowing the mall parking lot to "fall into disrepair due to lack of maintenance,” court papers state.

Simon Properties owned the mall and was responsible for parking lot maintenance from 1996 until it sold its ownership interest to Coyote Alton Mall in 2007, according to the court record.

Burns further alleged that Simon Properties knew of the poor condition of the parking lot when it conveyed the property to Coyote in 2007, and knew that Coyote borrowed heavily and did not have enough money to repair the lot.

Simon Properties filed a motion to dismiss Burns’ complaint on May 11, 2012, under section 2-615 of the Illinois Code of Civil Procedure, claiming the plaintiff failed to give sufficient facts to demonstrate that she had a right not to be negligently injured, which is allegedly a private right. Section 2-615 “tests the legal sufficiency of the complaint.”

“The defendant argued that it did not owe a duty to the plaintiff because it never owned the parking lot where the plaintiff fell and it did not possess, occupy, or control the parking lot during the time that the plaintiff fell,” Welch states in the opinion.

During the course of litigation, it was revealed that the parking lot where Burns fell was actually owned by Macy’s or May Properties, which ultimately led the court to enter an order dismissing the plaintiff’s complaint. Burns appealed.

Welch held that Burns was on Macy’s parking lot by invitation rather than public right; and therefore, had no public right for the lot to be in a reasonably safe condition.

“Public rights stem from being part of the public and the right for people to come onto the parking lot in this case stems from an invitation for business by private business owners who had shops in the mall,” Welch stated. “There was no right to be on the property before the business extended the invitation, and there would be no right to be on the property after the businesses rescinded the invitation.”

The court further held that Burns was not exercising a right common to the entire public at the time she entered the parking lot, therefore she failed to state a cause of action for public nuisance, the opinion states.

Simon Properties’ motion for dismissal was upheld because it had no duty to the plaintiff, the appellate court held. It didn’t own or lease the parking lot at the time of Burns' fall, and was not responsible for maintaining the parking lots.

“The present case involves a nuisance that resulted from a condition or conduct upon land, and therefore control over the land is generally a necessary prerequisite to the imposition of liability for public nuisance,” Welch stated in the opinion.

Justice Goldenhersh dissented stating that allegations necessary to plead a public nuisance may be based partly on allegations of negligence.

Goldenhersh stated that a plaintiff must allege a right common to the general public, including the rights of the public health, safety, peace, comfort or convenience in order to claim public nuisance. He stated that Burns alleged that the defendant knew the hazardous condition of the east parking lot when it owned and maintained the property. He continued that the plaintiff alleged several people fell in the mall parking lot during the period from 1996 to 2007, which affirms the defendant’s knowledge of the condition of the lot, and that it was not necessarily relieved of its duty when it sold its interest in 2007.

“The trial court was premature in finding that there was no public nuisance stated in the complaint,” Goldenhersh stated. “Defendant presented no affidavits in support of its assertion that the mall parking lot was not a public place. The trial court was premature in making this determination, and plaintiff was not allowed to adequately develop her theory of the case.”

Goldenhersh stated that guests have a right to be protected on the parking lots which provide access to the stores inside the mall, arguing that Burns safety was, in fact, a public right, not a private right.

“I disagree with the trial court’s analysis […] that a pothole in a private lot can never constitute a public nuisance,” Goldenhersh stated. “Such a hard and fast ruling is contrary to our state’s policy to protect patrons from dangerous conditions on parking lots.”

Goldenhersh stated that Simon Properties owned the parking lots when the pothole in question was created and was aware that Coyote would be unable to repair the parking lot nuisance.

He concluded by stating, “Even though someone else may also be at fault, defendant is not necessarily absolved of its own liability.”

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