*1 (§§ 345), eff. Laws 80 344 to by § 2 (repealed ch. *** 1940) (“All signed writing, reduced to wills shall be January 1, *** testatrix, presence in the attested by the testator witnesses”). Again, two or more credible by or testatrix testator es allowing evidence to competent other provision in section 6— may by proponent which the expands the means tablish will will, required formalities for the but it does not reduce the prove Thus, pursuant 4—3 of Act. formation of a valid will section early guidance interpretation still on the provides law sound of the term “attestation.” application reasons,
Therefore, for the above we reverse County. circuit court of Cook
Reversed. COUSINS, J.,
McNULTY, EJ., and concur. CHICAGO, al., Plaintiffs-Appellees, v. THE CITY JOHN KNIGHT et OF Defendant-Appellant. (3rd Division)
First District No. 1 — 96—0329 Opinion Rehearing September filed June denied 1998. *2 J., COUSINS, dissenting. (Lawrence Sher, Counsel, Rosenthal, Corporation Chicago
Susan S. of Solomon, Joranko, Timothy Corporation Ruth Benna and W. Assistant Counsel, counsel), appellant. of for Julian, Associates, Novoselsky Paul T. & and Julian David A. Linda Biyceland, Novoselsky Associates, A. both of David A. & for both Knight. appellee John (Victor Cummings, Ciardelli, Chicago
Ciardelli & E Patrick M. Cum- counsel), Rizzi, appellee for Alicia Rizzi, and Dom J. mings, J. Steven Washington. opinion court: CAHILL delivered JUSTICE fire, truck, to a fire on Chicago facts are these: repair and median The median was under strip. onto a raised drove pits. The driver lost control and tree empty planter contained boxes pit. a tree truck entered the boxes and when the wheels of the lane traffic and hit a car oc- then opposite truck entered car, Knight, Dovie was cupied by young two women. The driver injured. was Dovie Washington, killed and the Alicia passenger, Chicago Washington father Alicia each sued the Knight’s (the trial, the City). jury The actions were After returned consolidated. $1,500,000 for favor of Alicia Knight verdict favor of John $200,000. City appeals. Washington We reverse. midnight September Chicago fire- approximately
At fighter, Lynch, driving Chicago department Patrick was fire snorkel truck, call, to a responding truck on Halsted Street. southbound traveling per warning was miles hour with siren and approximately 35 time, her lights Knight driving At the same Dovie was car activated. on Halsted. north
The fire truck the intersection of 111th through went southbound Halsted, per miles light green, traveling where the still parked The parking hour. lane of southbound Halsted was filled with *3 double-parked right-hand cars. Two cars were in the southbound travel lane, only so left-hand southbound lane was clear for traffic. cars, approached double-parked
As the fire the truck truck left, to the on the left side of the truck swerved the wheels disputed mounted the median curb. Witnesses whether the driver of the fire truck had been forced to take action because a car had evasive alley only open left and lane adjacent come out and blocked the of traffic. median, in and
Once on wheels of fire truck rolled out planter pit. propelled boxes and into the tree The truck was then Dovie off the median into the northbound lanes where facing car The truck struck the driver’s Knight’s northbound. Knight’s of Dovie side door car. City damages jury negligent
The found the and awarded plaintiffs. City posttrial judgment The filed a motion for notwithstand- or, alternative, a The court denied the ing the verdict in the new trial. truck, motion, finding it was that a fire median, vehicle, City duty that the has would drive on a raised it and maintains boxes on reasonable care when installs medians.
If
duty
defendant owes no
to the
plaintiffs, evidence
duty,
establishes that there is no
the verdict cannot stand. Pedrick v.
(1967).
Co.,
Peoria &
Eastern R.R.
37 Ill. 2d
We note throughout brief, argue their City safe, that the not had a to make the median but also repair. out, warn a raised median As points under brief the alleged failure to warn through was addressed a motion in limine. The issue was excluded from trial no objection plaintiffs. jury by given instruction tendered jury not did raise the issue. The issue is waived. Green v. Union Pacific (1995). Co., App. R.R. 3d We note, however, that the City owes no to warn of obvious presumed and that leaving drivers are danger know that the road is District, ous. Bucheleres Park Chicago v. 171 Ill. 2d City immunity liability has absolute from based alleged warnings failures erect traffic or barricades. See 745 (West 1994). ILCS 10/3—104 claim negligence duty, must allege existence breach duty, injury by
of that and an proximately caused the breach. Ross City Chicago, subject to the Local Employ Governmental and Governmental (the Act) (745 (West 1994)). Immunity ees Tort Act ILCS 10/3—102 imposes duty ordinary Section Act to exercise care 3— to maintain safe condition. The bemay if, liable after it or improves public property, appears constructs its use that the has created a condition that is reason 102(a) (West 1994). ably safe. ILCS The Act codifies 10/3 — Ross, municipalities public ways. common law duties of law, At liability common arises when the under *4 improvement unreasonably dangerous taken creates condition. Ross, Ill. at App. 168 3d 87. argues scope that the of its reasonably of
a safe condition cannot be read to include maintenance
801
vehicles, including
they are safe for
that
medians in such
raised
vehicles,
roadway.
the
they
when
leave
that,
however,
court has held
note,
supreme
our
Plaintiffs
as
injured
someone is
condition and
a hazardous
“when
creates
City Chicago
Baran v.
damages.”
respond
must
consequence
of
(1969).
argue
181,
Plaintiffs
177,
N.E.2d 227
43
2d
251
Heights,
Ill.
In
created a hazardous condition.
pits
the
boxes
tree
Salle, 121
3d
App.
Ill.
County La
they rely on Michalak v.
support
of
Dudlow,
2d
App.
17 Ill.
574,
(1984),
Kubala v.
In
left
injured
the car and
guardrail pierced
and slid into guardrail.
court, relying
Supreme
opinion
on the Illinois
Court
plaintiff.
(1974),
Brennan,
Ill. 2d
held that
v.
56
Cunis
reasonably
duty is owed
occurrence
foreseeable. An occurrence
reasonably
have
“reasonably
prudent person
if a
could
foreseeable”
“ "highly
likely
transpired.
foreseen as
the events that
If the events are
” “
”
“
”
extraordinary,’
is not
‘unique,’
‘bizarre’
occurrence
Michalak, 121 Ill.
at
Cu
reasonably
App.
quoting
foreseeable.
3d
nis,
2d
of a
at 380-81. The court found that the construction
foreseeability:
guardrail
at the site conceded
that someone
devi
Michalak,
roadway.
App.
ate from
3d
Even
the accidents
though Michalak and Cunis stress whether
foreseeable,
noted that “the exis
were
the Cunis court
legal duty
tence of a
factor
foresee
to be bottomed on the
of
Cunis,
“Instead,
must
ability alone.”
See imposes duty, law courts examine four the likeli mon Illinois factors: foreseeability injury, of such injury, hood reasonable magnitude guarding against injury, and the conse burden defendant). placing that burden quences plaintiff In Kubala court stated a cause reviewed whether Kubala, at App. action relief upon granted. which could be plaintiff alleged placed had a row 467. defendant Kubala, posts roadway. concrete on his land near a curved roadway passenger 2d at 468. The was a car that left the victim Kubala, 17 Ill. 2d at posts. the curve and struck the concrete found general applicable The court rule to this case was noted that (Second) Torts, in the Restatement section 368: *5 “A possessor permits of land who creates or to remain thereon an existing excavation or other artificial condition so near an highway that he realizes or should realize that involves un- accidentally reasonable risk brought to others into contact with traveling such condition while upon with reasonable care the highway, subject liability is to for physical thereby harm caused to (Second) [them].” § Restatement of Torts at 268 The court not did address the but duty, plaintiff issue found that the a Kubala, stated cause of action. 2d at 469-70. Kubala is helpful. duty does not issue address the and a involves private land owner rather than municipality. a and,
A more
believe,
recent case
we
one dispositive of the case
here,
is DiBenedetto v. Flora
Township,
(1992). In
DiBenedetto the victim’s car crossed an
lane of
traffic, then crossed a
to
five-
seven-foot-wide shoulder and
in
crashed
drainage
ditch. The plaintiff maintained that the
steepness
the
ditch
proximity
paved
and its
to the
edge
road were
Our supreme
traffic.
court noted that
ditch
designed
was not
DiBenedetto,
vehicular traffic.
Plaintiffs distinguish They argue DiBenedetto. that ap- plying DiBenedetto to expands holding effectively this case duty only confine roadways. traveled First, argue Plaintiffs there doing are several reasons for not so. plaintiffs maintain emergency that vehicles routinely drive on or emergency, they across medians avoid traffic in case of cite to the fire truck driver’s in testimony support. Plaintiffs conclude that it so, is emergency foreseeable that vehicles enter the If median. duty has a to make the median safe and free from Second, for emergency obstructions vehicles. argue distinguished. Here, DiBenedetto can be adjoined the median roadway and, ditch, separated unlike the from drainage was not roadway by a shoulder. disagree.
We Even if we were to concede fire trucks “rou- driver, tinely” testimony, on raised drive the fire truck his everywhere.” pointed emergency go “potentially out vehicles endless, hypothetical playgrounds pedestrian cases is A shopping malls —wherever there fire. foreseeably by emergency may be used all make safe limit. vehicles is a without DiBenedetto, accident “[w]hile this court wrote in that, all are foresee retrospect, accidents to the extent DiBenedetto, enlarge township’s duty.”
able, not sufficient to this is 2d at 72. roadways only need maintain municipality is unsafe surrounding roadway area That the passable condition. municipality for which a not the sort of defect for vehicular travel is DiBenedetto, only as a municipality Ill. 2d at 71. “Just liable. for their normal required to maintain its streets and sidewalks traveled uses, to maintain the township required intended way, shoulders, according to their normal and drainage ditches 71-72, citing Warchol v. intended uses.” An enlarge would to this rule for exception *6 supreme court City in a we believe is incompatible in decision DiBenedetto. motion denying
The trial court erred in for notwithstanding verdict.
Judgment reversed.
GORDON,J., concurs. COUSINS, dissenting:
JUSTICE
I dissent. emergency city record in the instant establishes that necessary to get vehicles used the medians as and when around traffic. Therefore, the of median in at bar by emergency use the case and, permissible case, both on the record in this vehicle was based foreseeable.
Although
permitted
City
vehicles
to use
does
it has
make
improvements
contend that
no
to maintain or
dangerous
any
in
prevents
medians
a manner that
condition
majority,
adopts
that use the median. The
appeal,
vehicles
However,
Supreme
contention.
the Illinois
Court declared more
century ago
than a
creates a hazardous
quarter
“when
respond in
injured
consequence
condition and
as a
it must
someone
damages.”
City Chicago Heights,
Baran
Ill. 2d
N.E.2d 227
Further,
Local
section
Governmental
3—
(the Act)
Act
Employees
Immunity
provides:
Governmental
Tort
public entity
ordinary
“[A] local
has the
to exercise
care
maintain its
in
safe condition for the use
of ordinary
entity
the exercise
care
people
whom the
intended
102(a) (West
permitted
property.”
use the
745 ILCS 10/3—
1994).
Therefore,
Act,
if,
under the
liable
after
it
or
constructs
improves public property
appears
“it
its
City]
[the
use
has
created a condition that
not reasonably
safe.” 745 ILCS 10/3—
1994).
103(a) (West
Liability arises when the
improve
undertaken
ment itself creates an unreasonably dangerous
condition. Ross v.
supreme
cites the
court’s
decision DiBenedetto v. Flora
Township,
(1992),
to support
its conten
tion that
it
owed no
under the circumstances
in this case.
However,
distinguishable
DiBenedetto is
present
case. In
DiBenedetto, the
decedent’s automobile crossed over the
lane,
traffic
entered a
five-
seven-foot-wide shoulder area on the
edge
paved roadway,
shoulder,
of a
crossed over the
landed in the
ditch
drainage
immediately overturned,
killing the decedent. The
plaintiff maintained that the
ditch
drainage
alongside the road was
not safe for vehicular
sought
traffic and
to hold
township
liable for
its
drainage
failure
make the
ditch safe for vehicular traffic.
DiBenedetto,
Unlike an emergency the instant case involves vehi- Also, cle. roadway, DiBenedetto shoulder and ditch are dissimilar. Further, routinely record establishes vehicles get drive on across medians to around city. traffic Addition- ally, case, the instant Here,
would travel onto and traverse the median. defendant had *7 reasonably either make the median free obstruc- tions, warn or of obstructions on the median that were obscured so that emergency personnel could have the median warning that not safe to traverse. further,
Still unlike the record establishes that the directly adjoins area where the incident in this occurred Again, roadway. it was foreseeable that vehi cle come into contact an excavation other artificial Dudlow, built See adjacent roadway. condition Kubala v. In appeal, agree this I with the contention that “the is- *** making ‘improvements’ duty in on the centers sue on such relating to obstacles warn of medians and to by emergency routinely used they are it knows that when emergency situa- in other they could be used it is foreseeable and has this issue has addressed Supreme Court The Illinois tions.” stated: and someone condition a hazardous
“[W]hen a creates just oth damages, as respond in consequence it must injured as a *** like an individ corporation, municipal required to do. ers rights its required to exercise corporation, is private or a ual injury. subject others to as shall not precautions powers with such func governmental of its it in the exercise protects The rule which liability when the [it] to relieve not be construed tions should city’s streets leaves the devised, operation, put plan Chicago Heights, Baran v. public use.” dangerous condition Seben, 46 N.E. Chicago v. citing City Ill. 2d at be affirmed. The decision of the trial court should COMPANY, Plaintiff-Appellant, AMERICAN COUNTRY INSURANCE al., Defendants-Appellees. et BROTHERS, INC., KRAEMER (4th Division) No. 1 — 97—0032 First District August Opinion filed