Opinion
No. 1-13-2856
06-26-2014
LORRAINE PATTULLO-BANKS and GEORGE BANKS, Plaintiffs-Appellants, v. CITY OF PARK RIDGE, a Municipal Corporation, Defendant-Appellee.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
12 L 1459
Honorable
Lynn M. Egan,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Fitzgerald Smith and Epstein concurred in the judgment.
ORDER
¶ 1 Held: The trial court's ruling granting summary judgment in favor of the City of Park Ridge is reversed. Where plaintiff's injuries arose from an unsafe activity conducted on otherwise safe property, the trial court erred in finding that the City was immune from liability under section 3-102(a) of the Tort Immunity Act. ¶ 2 Plaintiff Lorraine Pattullo-Banks filed a lawsuit against the City of Park Ridge, among others, after she was struck by a car and injured on Touhy Avenue. In the complaint, which included consortium claims on behalf of her husband, George Banks, plaintiffs alleged that the City of Park Ridge failed to clear its sidewalk of an unnatural accumulation of snow and ice thereby causing Pattullo-Banks to cross Touhy Avenue where she was struck by a car and injured. The City of Park Ridge filed a motion for summary judgment, and the trial court granted the City's motion pursuant to section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act). 745 ILCS 10/3-102(a) (West 2008). Plaintiffs now appeal the trial court's ruling on summary judgment. For the reasons stated below, we reverse the trial court's grant of summary judgment in favor of the City of Park Ridge.
¶ 3 BACKGROUND
¶ 4 Plaintiffs filed negligence and loss of consortium claims against defendants Rand Gerald, the City of Park Ridge, Union Pacific Railroad Co. and Robert Casey in order to recover damages for the personal injuries Pattullo-Banks suffered after she was hit by a car while crossing Touhy Avenue in the City of Park Ridge on February 20, 2008. ¶ 5 Earlier in the litigation, the City of Park Ridge, as well as other defendants in the case, filed motions to dismiss plaintiffs' claims, and the trial court granted the motions. Plaintiffs appealed the trial court's ruling, and we affirmed in part and reversed in part. With respect to the City of Park Ridge's motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(9) (West 2008)), we found that the trial court improperly dismissed those claims. Specifically, we found that for purposes of a section 2-619(a)(9) motion, it was insufficient for the City of Park Ridge to attach an affidavit stating that there was no crosswalk where Pattullo-Banks was struck by a car because that merely rebutted plaintiffs' well-pled allegation that there was an unmarked crosswalk where she was struck by a car. Thus, because the City of Park Ridge failed to offer affirmative matter to rebut the well-pled facts in plaintiffs' complaint, we reversed the trial court's dismissal pursuant section 2-619(a)(9) and remanded the matter for further proceedings. In so ruling, we noted that we were not addressing the underlying merit of plaintiffs' allegations that the City of Park Ridge owed Pattullo-Banks a duty. ¶ 6 Following remand, the City of Park Ridge amended its complaint. Count III of plaintiffs' second amended complaint, titled "Breach of Duty, Negligence" against the City of Park Ridge alleges that the City of Park Ridge owed plaintiff numerous duties that it breached, which included: a duty not to create or aggravate an unnatural accumulation of snow and ice on the public walkways; a duty to provide known and permitted users of the train station with safe and reasonable means of egress from the train stations; a duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom Park Ridge intended and permitted to use the property; a duty to remedy conditions created by the Uptown Redevelopment Project that appeared from their use not to be reasonably safe; and a duty to warn commuters and other pedestrians that if they exited the train station onto the south side of Touhy Avenue, there would be no safe way to get to the north side. ¶ 7 On April 2, 2013, the City of Park Ridge filed a motion for summary judgment. In the motion, the City argued that it owed no duty to Pattullo-Banks pursuant to section 3-102 of the Tort Immunity Act because she was not an intended user of Touhy Avenue at the time she was struck by a car. Section 3-102(a) of the Tort Immunity Act, which is titled "Care in maintenance of property; constructive notice," states:
"(a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain itsIn further support of this argument, the City offered, among other evidence, the testimony of Park Ridge Police Sergeant and accident reconstructionist Kirk Ashelman, the testimony of City Engineer Sarah Mitchell, and numerous photographs of the property in question. Both witnesses offered testimony that there was no marked or unmarked crosswalk where 3rd Street intersects Touhy Avenue. ¶ 8 In response, plaintiffs argued that the City of Park Ridge did owe Pattullo-Banks a duty of care because the City was negligent in clearing an unnatural accumulation of snow and ice from the sidewalk. While plaintiffs argued that whether Pattullo-Banks was in a crosswalk was irrelevant, they alternatively argued that she was in an unmarked crosswalk at the time she was struck by a car. In support of this argument, plaintiffs offered the definition of a "crosswalk" as defined by the Illinois Vehicle Code (625 ILCS 5/1-113 (West 2008)) as well as photographs of the property at issue. ¶ 9 On August 5, 2013, the trial court granted summary judgment in favor of the City of Park Ridge because it found that the City of Park Ridge did not owe Pattullo-Banks a duty. Specifically, the trial court found that the testimony of the City's witnesses along with the photographs of the property at issue showed that there was no marked or unmarked crosswalk where Pattullo-Banks was injured. Finding that a city does not owe a duty to a pedestrian crossing the street outside of any sidewalk pursuant to section 3-102(a) of the Tort Immunity Act, the trial court granted summary judgment in favor of the City of Park Ridge. Plaintiffs now appeal the trial court's ruling granting summary judgment in favor of the City of Park Ridge. For the reasons below, we reverse the trial court's ruling.
property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition." 745 ILCS 10/3-102(a) (West 2008).
¶ 10 ANALYSIS
¶ 11 Summary judgment is proper where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2008). Summary judgment in favor of a defendant is proper where the plaintiff fails to establish an element of a cause of action. Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989). Accordingly, a defendant is entitled to summary judgment where it is shown that the plaintiff is not owed a duty of care. Dunet v. Simmons, 2013 IL App (1st) 120603, ¶ 26. We review summary judgment rulings de novo. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). ¶ 12 In order to maintain a cause of action for negligence, plaintiff must establish that the City owed a duty of ordinary care, breached that duty, and an injury was proximately caused by that breach. Curatola v. Village of Niles, 154 Ill. 2d 201, 207 (1993). Whether the City owed plaintiff a duty of care is a question of law for the court to decide. Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 158 (1995); Marshall v. City of Centralia, 143 Ill. 2d 1, 6 (1991). The Tort Immunity Act limits the common law duties of municipalities. Gutstein v. City of Evanston, 402 Ill. App. 3d 610, 616-17 (2010). Section 3-102(a) of the Act provides in pertinent part: "[A] local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used * * *." 745 ILCS 10/3-102(a) (West 2008). Because "the Act 'is in derogation of the common law,' " we must construe it strictly against the municipal defendant. Vaughn, 166 Ill. 2d at 158 (quoting Curatola, 154 Ill. 2d at 208). ¶ 13 Our courts have held that immunity pursuant to section 3-102 only applies where an injury arose from a condition of the property. (Emphasis added.) Nelson v. Northeast Illinois Regional Commuter Rail Road Corp., 364 Ill. App. 3d 181, 184 (2006). In Nelson, the court explained:
"The same analysis applies to section 3-102(a), which provides that local public entities owe no duty (e.g., are immunized) for injuries arising from the unsafe 'condition' of its property where the injured party was not an intended or permitted user of the property. Section 3-102(a) provides no similar immunity for persons injured by unsafe activities conducted on the property. Thus, in answer to the certified question, section 3-102(a) immunity applies where the following two requirements are met: (1) the injured party was not an intended and permitted user of the property; and (2) the injury arose from the condition of the property. Section 3-102(a) immunity does not apply where the injuries arose from an unsafe activity conducted on otherwise safe property." Nelson, 364 Ill. App. 3d at 190.Plaintiff here has never alleged that she was injured as a result of a condition in the street. Therefore, her "injuries arose from an unsafe activity conducted on otherwise safe property," and section 3-102 immunity does not apply. Nelson, 364 Ill. App. 3d at 190. Accordingly, because the trial court granted summary judgment based on its conclusion that the City of Park Ridge was immune from liability under section 3-102 of the Tort Immunity Act, we must reverse the trial court's order. The Tort Immunity Act does not apply here. ¶ 14 In finding that the Tort Immunity Act does not apply here, we note that plaintiffs have pointed out an important distinction in this case. Plaintiffs note that their allegations arise from the claim that the City negligently failed to clear the sidewalk of an unnatural accumulation of snow and ice. Although the City of Park Ridge argued in its motion for summary judgment that it had no duty to clear the sidewalk at issue, it is well established that a city has a duty to keep its sidewalk in a reasonably safe condition for pedestrians. See Kiel v. City of Girard, 274 Ill. App. 3d 821, 825 (1995) (a public entity may be liable for unnatural accumulations of ice and snow, provided that the public entity has violated its duty to exercise ordinary care). Further, a duty has been found to exist where a city negligently blocks a sidewalk, thereby causing pedestrians to use the street where they have been injured. See Thorsen v. City of Chicago, 74 Ill. App. 3d 98, 108 (1979); see also Johnson v. City of Rockford, 35 Ill. App. 2d 107 (1962). While the trial court judge suggested in her ruling on summary judgment that Wojdyla v. City of Park Ridge, 148 Ill. 2d 417 (1992), somehow overruled Thorsen and Johnson, this is not the case. Wojdyla dealt with injuries arising from a condition of the street, inadequate lighting. Thorsen and Johnson did not involve a condition in the street that caused injury; rather, they dealt with injuries that arose from an unsafe activity conducted on otherwise safe property, which, as noted earlier, is an important distinction. In our view, Thorsen and Johnson remain good law. ¶ 15 Duty and breach aside, we can foresee the more complicated issue of proximate cause being litigated. Ordinarily, questions concerning proximate cause are factual matters for the jury to decide. Ward v. K mart Corp., 136 Ill. 2d 132, 156 (1990). However, the issue of proximate cause can become a question of law when the facts are not only undisputed but are such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them. Durbin v. St. Louis Slag Products Co., Inc., 206 Ill. App. 3d 340, 357 (1990). ¶ 16 In Arbogast v. Fedorchak, 44 Ill. App. 2d 160 (1963), the court determined the issue of proximate cause as a matter of law where the plaintiff was struck by a car after she abruptly exited the bus upon realizing she had forgotten her bus pass. The plaintiff alleged that the bus driver stopped over the crosswalk, thus forcing the plaintiff to cross the street outside of a crosswalk and get struck by a car. The appellate court found that judgment notwithstanding the verdict in favor of the defendant was appropriate, stating: "We do not believe that reasonable minds should say the bus driver could reasonable foresee plaintiff's injury, as it occurred, following from his blocking of the rear crosswalk. In our judgment the bus, standing where it was, merely created a condition which was at most a remote cause of plaintiff's injury." Arbogast, 44 Ill. App. 2d at 169. ¶ 17 On the other hand, in Scerba v. City of Chicago, 284 Ill. App. 3d 435, 439 (1996), the court reversed the trial court's ruling on summary judgment in favor of the city where a CTA bus was blocking the crosswalk, which forced the plaintiff to cross the street outside of a marked crosswalk and get hit by a car. In reversing the trial court, this court noted "a reasonable jury could find an unbroken causal connection between the blocked intersection and the injury." Scerba, 284 Ill. App. 3d at 441. Although the court recognized the plaintiff foolishly rejected several safe routes for the risky path he chose, the court noted "availability of another route, standing alone, is not enough to erase the forseeability of [the plaintiff] pursuing the path he traveled." Scerba, 284 Ill. App. 3d at 441; see also Thompson v. County of Cook, 154 Ill. 2d 374 (1993) (finding that a driver's actions in driving drunk, speeding, and eluding the police was the sole proximate cause of plaintiff's injuries thereby breaking the any causal connection between the city's alleged negligence in failing to adequately warn motorists of a curve in the road and plaintiff's injuries.). ¶ 18 Nevertheless, the issue of proximate cause is not currently before us. The City of Park Ridge did not raise the issue in its motion for summary judgment and, accordingly, the trial court did not rule on this issue.
¶ 19 CONCLUSION
¶ 20 For the reasons stated above, we reverse the trial court's grant of summary judgment in favor of the City of Park Ridge and remand this matter for further proceedings. ¶ 21 Reversed and remanded.