MOUNT VERNON – Donna Godair of Granite City can’t sue Metro East Sanitary District over injuries from a fall near the Nameoki ditch behind her home, Fifth District appellate judges ruled on March 17.
They affirmed Madison County Circuit Judge Sarah Smith, who granted summary judgment to the sanitary district.
“Anywhere there is a moving body of water and steep edges, the risk is that getting too close to those edges might result in just the type of accident that occurred here,” Justice Randy Moore wrote.
Godair sued the sanitary district in 2016, claiming she sank as she turned from a maintenance road above the ditch to keep a grandchild way from the water.
Her attorney Edward Unsell of East Alton served a request for admissions that classified the maintenance toad as a parkway.
The sanitary district didn’t respond, and Smith granted a motion to deem all requests as admissions.
Unsell claimed the admissions established that the path required maintenance as a parkway, like a strip between sidewalk and curb.
The sanitary district moved to strike the word parkway, and Circuit Judge William Mudge denied the motion in 2018.
“It should be pointed out that no request specifically asked the defendant to admit that the area in question is in fact a parkway,” Mudge wrote.
He wrote that Godair merely described areas she chose to call a parkway.
Upon Mudge’s selection to chief judge, Smith took the case.
Both sides moved for summary judgment, and Smith granted it to the sanitary district last May.
Smith found the magnitude of guarding against injury too great because the district maintains hundreds of miles of ditches.
She rejected the parkway argument and found she’d grant summary judgment even if the path were a parkway.
She found the duty of care didn’t extend to customary parkway conditions.
On appeal, Fifth District judges found no reasoning as to how the determination of the piece of property as a parkway allowed Godair’s claim to succeed.
Moore wrote that the edge of a ditch has no similarity whatsoever to a parkway.
He found Godair improperly interpreted her requests for admissions to achieve a result she knew she couldn’t obtain through any other method.
He found the path served as a utility easement and a maintenance road for the sanitary district and utilities, and found it allowed tractors and heavy machinery to mow and make repairs.
He found the ditch to be 45 feet wide and 20 feet deep.
He found Madison County Transit maintains a paved path throughout Granite City parallel to the maintenance path on the opposite side.
He found the sanitary district doesn’t intend for pedestrians to use its property and its employees instruct pedestrians on the property to leave.
“The ditch and the ditch’s edge would have constituted an open and obvious condition,” Moore wrote.
He found Godair walked on the side of the path away from the ditch’s edge.
“Only once her grandson strayed off the maintenance road and onto the ditch’s edge did she leave the safety of the maintenance road to retrieve the child and save him from possible injury,” he wrote.
“One would expect an adult to be aware of the danger a large drainage ditch and its deep slope poses and to stay sufficiently away from its edge to avoid falling or slipping into it.
“One cannot separate the edge of the body of water from the body of water when considering how that body of water poses a danger to those who encounter it.”
Brian Funk of O’Fallon represented the sanitary district.