LORRAINE PATTULLO-BANKS and GEORGE BANKS, Plaintiffs-Appellants, v. THE CITY OF PARK RIDGE, a Municipal Corporation, Defendant-Appellee.
No. 1-13-2856
Appellate Court of Illinois, First District, Fourth Division
September 4, 2014
Opinion filed upon denial of rehearing September 4, 2014
2014 IL App (1st) 132856
Hon. Lynn M. Egan, Judge, presiding.
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 12-L-1459. Judgment: Reversed and remanded.
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
In an action against defendant city for the injuries plaintiff suffered when she was walking on a sidewalk, encountered a section of the sidewalk that was blocked by snow and ice the city had plowed onto the sidewalk from the city streets during a snowstorm and was struck by a car when she was forced to cross a street where there was no marked crosswalk, the trial court erred in entering summary judgment for the city on the grounds that plaintiff was not an intended user of the street where she was hit by the car and that the city was immune from liability under the Tort Immunity Act because the city’s duty to exercise ordinary care to maintain the street in a reasonably safe condition only applied to intended or permitted users, and since plaintiff alleged that the city breached its duty to exercise ordinary care to maintain the sidewalk, plaintiff’s status as an intended or permitted user was irrelevant; therefore, the entry of summary judgment for the city was reversed and the cause was remanded for further proceedings.
Jay S. Judge and Thomas N. Osran, both of Judge, James & Kujawa, LLC, of Park Ridge, for appellee.
Panel: JUSTICE HOWSE delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Epstein concurred in the judgment and opinion.
OPINION
¶ 1 Plaintiffs Lorraine Pattullo-Banks and George Banks appeal from an order of the circuit court of Cook County entering summary judgment in favor of defendant, the city of Park Ridge, in the lawsuit they filed to recover damages for personal injuries suffered by Lorraine Pattullo-Banks. In the complaint, plaintiffs alleged that the city of Park Ridge breached its duty to maintain its property in a reasonably safe condition for intended and permitted users of the sidewalk, which caused Pattullo-Banks’ injuries. Plaintiffs’ complaint alleged that Pattullo-Banks was walking near a train station on a city of Park Ridge sidewalk located along Touhy Avenue when she encountered an unnatural accumulation of snow and ice which obstructed her pathway. Plaintiffs alleged that the city of Park Ridge created the obstruction during snow removal operations when it plowed snow from the public streets onto the sidewalk, making the sidewalk impassable. Because the sidewalk was obstructed, the complaint alleges, in order to reach her destination Pattullo-Banks was forced to cross Touhy Avenue at the point of the obstruction, where there was no marked crosswalk. Pattullo-Banks was injured when she was struck by a car while attempting to cross the street. Plaintiffs sought damages for Lorraine’s personal injury and George Banks sought damages for loss of consortium.
¶ 2 The city of Park Ridge (the City) filed a motion for summary judgment. The City argued that section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (
¶ 3 The trial court agreed with the city of Park Ridge and dismissed the complaint, finding that the City was immune from liability for Pattullo-Banks’ injuries because Pattullo-Banks was not an intended user of Touhy Avenue where she was injured.
BACKGROUND
¶ 6 This is the second time this case has been appealed. Plaintiffs filed the first appeal from the trial court’s dismissal of the city of Park Ridge, as well as other defendants in the case, pursuant to
¶ 7 Following remand, plaintiffs amended their 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 Pattullo-Banks 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 station; 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 who Park Ridge intended and permitted to use the property; 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.
¶ 9 In response, plaintiffs argued that the city of Park Ridge owed Pattullo-Banks a duty because the City was negligent in creating an unnatural accumulation of snow and ice on the sidewalk. Plaintiffs argued that the issue of whether Pattullo-Banks was in a crosswalk was irrelevant. Alternatively, plaintiffs argued that Pattullo-Banks 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
¶ 10 On August 5, 2013, the trial court granted summary judgment in favor of the city of Park Ridge because it found that the City 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 crosswalk pursuant to
¶ 11 Plaintiffs appealed the trial court’s ruling granting summary judgment in favor of the city of Park Ridge. We reversed and remanded the trial court’s ruling in a June 26, 2014, Illinois Supreme Court Rule 23 order (Ill. S. Ct. R. 23(b) (eff. July 1, 2011)). Pattullo-Banks v. City of Park Ridge, 2014 IL App (1st) 132856-U. The city of Park Ridge subsequently filed a petition for rehearing. We withdrew our Rule 23 order on August 14, 2014. For the reasons that follow, the city of Park Ridge’s petition for rehearing is denied and the trial court’s ruling is reversed.
ANALYSIS
¶ 13 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.”
“(a) Except as otherwise provided in this Article, 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, 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.”
Id.
¶ 14 In its motion for summary judgment, the city of Park Ridge argues that for purposes of
¶ 15 It is well established that the Tort Immunity Act does not create duties; “[r]ather, the Act merely codifies those duties existing at common law, to which the subsequently delineated immunities apply.” (Internal quotation marks omitted.) Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490 (2001).
¶ 16 In this case, plaintiffs clearly allege that the city of Park Ridge breached its duty of care by failing to exercise reasonable care to maintain the sidewalk. Plaintiffs make no claim that the city of Park Ridge breached its duty to exercise reasonable care to maintain the street or that plaintiff was injured because of the improper maintenance of the street. Pattullo-Banks’ status as an intended or permitted user of the street is irrelevant to a determination of whether the City has immunity under
¶ 17 Under the plain language of the Tort Immunity Act, where a public entity has allegedly breached the duty to maintain property for intended and permitted users of the property, we must look to the property where the breach allegedly occurred to answer the question of whether the injured party was an intended or permitted user of the property. Thus, Pattullo-Banks’ status as an intended or permitted user—and whether immunity applies—must be determined based on the property where the alleged breach of duty occurred (the sidewalk), not the property where the injury occurred (the street), and not the mechanism of her injury (i.e., whether she was struck by an automobile or tripped on a defect). The trial court granted summary judgment in favor of the city of Park Ridge based on its finding that Pattullo-Banks was not an intended and permitted user of the street. The trial court granted summary judgment on an improper basis and its judgment must be reversed.
¶ 19 In Kiel, the plaintiff and her husband drove up to and pulled over alongside a sidewalk that was bordered by a curb. Kiel, 274 Ill. App. 3d at 823. When the plaintiff exited the car, she stepped over a mound of snow on the curb in order to reach the plowed sidewalk. Id. The mound of snow on the curb was created as a result of plowing the sidewalk and a parking lot. Id. After paying her bills and on her way back to the car, the plaintiff again attempted to step over the curb where the mound of snow was located, and she fell and injured herself. Id. The jury entered a verdict in the plaintiff’s favor, but the appellate court reversed that verdict, finding that it was against the manifest weight of the evidence. Id. at 828. Specifically, the court stated:
“Although the evidence was sufficient to establish that the City created an unnatural accumulation of snow and that plaintiff’s injuries would not have occurred without this unnatural accumulation, the evidence does not establish that the City breached its duty of ordinary care.
The City created a small, but easily visible, mound of snow on the curb as a side effect of its street and sidewalk-clearing efforts. There was nothing unusual about the size or placement of this mound. Snow cleared from pathways must be placed somewhere. Elsewhere, the City took the extraordinary measure of collecting snow from curbside and depositing it in the park. However, the mere fact that the City failed to use extraordinary measures everywhere does not mean it failed to use ordinary care here.” Id. at 827.
¶ 20 Thus, while the court in Kiel held that the verdict was against the manifest weight of the evidence, it was because there was nothing unusual about “the size or placement of this mound.” Id. The court in Kiel held that “[r]equiring prompt cleanup of all snow plowed curbside would place an enormous burden on cities, and such a duty would have the consequence of discouraging snow removal.” Id. at 828. The court held that “Illinois law imposes no such duty.” Id.
¶ 21 To the extent the Kiel court found the city did not have a duty to immediately remove plowed snow the holding is limited to the facts of that case and is inapplicable here and does not affect its holding that a duty to maintain the sidewalk exists. Id. at 827-28. Kiel involved a small amount of snow plowed “off the sidewalk and onto the curb.” Id. at 823. The court in Kiel still clearly recognized the duty of a city to clear unnatural accumulations of ice and snow from its sidewalks. Id. at 825 (“where a landowner negligently performs ice and snow removal, adding to or creating a new hazard, he may be liable for a resulting injury“). In this case, we are not dealing with a small amount of snow cleared from a sidewalk and onto a curb but, rather,
¶ 22 In its motion for summary judgment and petition for rehearing, the city of Park Ridge argues three decisions by our supreme court control the outcome of this case. They are Wojdyla v. City of Park Ridge, 148 Ill. 2d 417 (1992), Vaughn v. City of West Frankfort, 166 Ill. 2d 155 (1995), and Boub v. Township of Wayne, 183 Ill. 2d 520 (1998). In each of those cases our supreme court found that a city had no duty to a pedestrian injured in a street or roadway. However, we find those cases are easily distinguished. In Wojdyla, 148 Ill. 2d at 419, the plaintiff alleged that the city was negligent in the placement and maintenance of streetlights on the highway. The plaintiff argued that the city’s failure to maintain the streetlights was the cause of the decedent’s death when a driver of a vehicle was unable to see the decedent and hit him as a result. Id. Ultimately, the court found that the city was immune under
¶ 23 In Vaughn, 166 Ill. 2d 155, the plaintiff sought recovery for injuries caused as a result of stepping into a hole in the street while crossing. Vaughn, 166 Ill. 2d at 157. Ultimately, the court found that the city was immune under
¶ 24 In the cases on which the city of Park Ridge relies, the plaintiffs made allegations that their injuries were caused by the defendants’ failure to exercise ordinary care to maintain a street or bridge. In those cases, when the defendants raised
¶ 26 Here, plaintiffs do not allege that Pattullo-Banks was injured as a result of a condition of the street where she was injured. As such, it cannot be said that plaintiff’s injury arose from a breach of the City’s duties to maintain the street. Instead, her “injuries arose from an unsafe activity [crossing at an unmarked crosswalk] conducted on otherwise safe property [the street]” (id.), and the Tort Immunity Act does not grant the City immunity under such a scenario (id.). As such, the trial court’s summary judgment order for the city of Park Ridge must be reversed.
¶ 27 If plaintiffs establish the City was negligent in creating an unnatural accumulation of ice and snow on the sidewalk, the proper question at that point becomes whether the alleged breach of duty to maintain the sidewalk was a proximate cause of Pattullo-Banks’ injury in the street. The city of Park Ridge also raised in its petition for rehearing that the plaintiff violated state law by failing to cross the street at a designated crosswalk. However, not only was this issue not raised in the City’s motion for summary judgment and not properly before us on appeal, but Pattullo-Banks’ crossing Touhy where she did and any alleged violation of traffic laws are questions of proximate cause. Johnson v. City of Rockford, 35 Ill. App. 2d 107, 120 (1962) (“Whether or not the piling of the snow and ice on the sidewalk and permitting it to remain there was the proximate cause or one of the proximate causes of the injury in question, we believe to be a question of fact to be determined by a jury ***.“); Parkin v. Rigdon, 1 Ill. App. 2d 586, 593 (1954) (“such conduct on the part of the pedestrian will not of itself preclude recovery on the ground of contributory negligence if the violation of the statute is not the proximate cause of the injury“).
¶ 28 In similar circumstances, the court has found that when it is established that a city has breached its duty to maintain its sidewalks or otherwise provide a safe place to walk, or else give notice that the street is closed to pedestrian traffic (Thorsen, 74 Ill. App. 3d at 107), the next issue is whether the city’s breach constitutes a proximate cause of the plaintiff’s injuries. Thorsen, 74 Ill. App. 3d at 107-09. In Thorsen, the plaintiff was struck by an automobile while walking in the street. Id. at 101. The plaintiff testified that the city “failed to maintain a sidewalk[,] *** making it necessary for pedestrians to use the street.” Id. The area where the
¶ 29 While the trial judge suggested in her ruling on summary judgment that Wojdyla somehow overruled Thorsen and Johnson, this is not the case. Wojdyla dealt with injuries arising from a condition of the street where the injury occurred: inadequate lighting. Thorsen and Johnson dealt with injuries that arose from an unsafe activity conducted on otherwise safe property; which, as noted earlier, is an important distinction. Moreover, Thorsen and Johnson, like this case, dealt with an allegedly negligent failure to maintain property in one location that may be a proximate cause of an injury in another location. In our view, Thorsen and Johnson remain unaffected by Wojdyla and are good law.
¶ 30 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 persons as to the inferences to be drawn from them. Durbin v. St. Louis Slag Products Co., 206 Ill. App. 3d 340, 357 (1990). 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 a bus after realizing she had forgotten her bus pass. The plaintiff alleged that the bus driver stopped over the crosswalk, forcing the plaintiff to cross the street outside of the crosswalk, where she was then hit by a car. Arbogast, 44 Ill. App. 2d at 167. 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 that the bus driver could reasonably 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.” Id. at 169.
¶ 31 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 Chicago Transit Authority bus was blocking the crosswalk, forcing the plaintiff’s child to cross the street outside of a marked crosswalk, where the child was then 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 that the child foolishly rejected several safe routes for the risky path the child ultimately took, the court noted that the “availability of another route, standing alone, is not enough to erase the foreseeability of [the child] pursuing the path he traveled.” Id. 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 were the sole proximate cause of the plaintiff’s injuries thereby breaking any causal connection between the city’s alleged negligence in failing to adequately warn motorists of a curve in the road and the plaintiff’s injuries).
¶ 33 We reiterate that we are making no determination as to the presence of any marked or unmarked crosswalks, that there was a breach of duty, or that a breach of duty was a proximate cause of Pattullo-Banks’ injury. We are holding that the trial court misapplied
CONCLUSION
¶ 35 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.
¶ 36 Reversed and remanded.