Boylan v. Martindale, 81-323

• Citation: 103 Ill.App.3d 335,59 Ill.Dec. 43,431 N.E.2d 62
• Decision Date: 22 January 1982
• Docket Number: No. 81-323,81-323
• Parties: , 59 Ill.Dec. 43 Elmer BOYLAN, as Conservator of the Estate and Person of Douglas Boylan, an incompetent, Plaintiff-Appellant, v. Grace MARTINDALE, Defendant, and City of Elmhurst; Illinois Bell Telephone Company; and Commonwealth Edison Company, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 62

431 N.E.2d 62

103 Ill.App.3d 335, 59 Ill.Dec. 43

Elmer BOYLAN, as Conservator of the Estate and Person of Douglas Boylan, an incompetent, Plaintiff-Appellant, v. Grace MARTINDALE, Defendant and City of Elmhurst; Illinois Bell Telephone Company; and Commonwealth Edison Company, Defendants-Appellees.

No. 81-323.

Appellate Court of Illinois, Second District.

Jan. 22, 1982.

Anesi, Ozmon, Lewin & Assoc., Noel C. Lindenmuth, Maureen A. Mitchell, Nat P. Ozmon, Dario A. Garibaldi and Mark Novak, Chicago, for plaintiff-appellant.

L. Bow Pritchett, Robert Guritz and Georgia J. Reithal, Chicago, for Illinois Bell Tel. Co.

Jacobs, Williams & Montgomery Ltd., Barry L. Kroll, Chicago, for (M. Miller, City of Elmhurst).

Rathje, Woodward, Dyer & Burt, Wheaton, for defendants-appellees.

REINHARD, Justice:

Plaintiff sued defendants Grace Martindale, the city of Elmhurst, Illinois Bell Telephone Company, and Commonwealth Edison Company for injuries suffered by his incompetent in an automobile accident at the intersection of North and Myrtle Avenues in the City of Elmhurst. The trial court dismissed counts III and VI of plaintiff's fourth amended complaint against the city of Elmhurst, counts IV and VII against Illinois Bell Telephone Company, and counts V and VIII against Commonwealth Edison Company all for failure to state a cause of action. The court also granted Elmhurst's motion for summary judgment on count II of the complaint. The trial court made the necessary finding that there was no just reason for delaying enforcement or appeal of his order. (Ill.Rev.Stat.1979, ch. 110A, par. 304(a).) Plaintiff now appeals and alleges that the orders of dismissal and summary judgment were erroneously granted. The essential facts as alleged in plaintiff's fourth amended complaint are as follows.

On June 12, 1976, plaintiff's incompetent was a passenger in an automobile being driven by Ronald Camire in an easterly direction on North Avenue in the city of Elmhurst, Illinois. On the same date, Grace Martindale was operating her motor vehicle in a southerly direction on Myrtle Avenue approaching an intersection with North Avenue. The cars collided at the intersection of North and Myrtle Avenues and the car in which plaintiff's incompetent was a passenger had a secondary impact with a wooden utility pole that was located near the intersection.

The basic allegations contained in the relevant counts of plaintiff's fourth amended complaint can be summarized as follows:

Counts II, III, and VI of the complaint were against the city of Elmhurst. Count II alleged that the city had breached its duty in failing to remove certain trees and bushes near the intersection which obstructed the view of approaching drivers. Count III alleged that the city carelessly and negligently permitted the placement of a certain wooden utility pole and other wooden utility poles in a dangerous position along the lateral edge of North Avenue within six to twelve inches from the traveled portion of the highway "knowing that said placement violated standards of design and engineering of highways and their appurtenances and knowingly permitted those wooden utility poles to be continually subjected to collisions with automobiles and collision damage from automobiles traveling on the aforesaid North Avenue." Count VI made essentially identical allegations against the city as in Count III but inserted the words wilfully and wantonly for the words carelessly and negligently.

Counts IV and VII of plaintiff's fourth amended complaint were against Illinois Bell Telephone Company. Count IV alleged that the company breached its duty to operate, manage, maintain, and control a certain wooden utility pole located near the intersection of North and Myrtle Avenues by negligently and carelessly placing this pole and other utility poles in a dangerous position along the lateral edge of North Avenue within six to twelve inches from the traveled portion of the highway "knowing that said placement violated standards of design and engineering if (sic) highways and their appurtenances and knowingly permitted those wooden utility poles to be continually subjected to collisions and collision damage from vehicles traveling on the aforesaid North Avenue." Count VII made nearly identical allegations but inserted the words wilfully and wantonly for carelessly and negligently.

Counts V and VIII of the complaint were against Commonwealth Edison Company and contained the same allegations contained in Counts IV and VII respectively.

Attached to the city of Elmhurst's motion for summary judgment are certain portions of the transcripts of the depositions of Ronald Camire and Grace Martindale and four photographs of the intersection. No counter-affidavits were filed by plaintiff although five additional pages of Camire's deposition were attached to plaintiff's memorandum in opposition to the summary judgment motion.

Ronald Camire stated in his deposition that the highest speed he was traveling down North Avenue prior to the impact with the Martindale vehicle was 65 miles per hour. He was traveling "just as fast as (he) could" in order to reach a hospital. As he was approximately a block away from the intersection at Myrtle, he began to slow down gradually since the traffic light facing him at the intersection had turned from green to yellow. Camire stated that he had a clear view of the traffic light, but he did not stop because he did not notice any cars on Myrtle Avenue at or near the intersection. Camire looked to see if any cars were "going to jump out." He stated that he "just didn't see" the car with which he collided. Camire approximated his speed at over 40 miles per hour at the time he arrived at the west curb of Myrtle Avenue. He stated that North Avenue is a tree-lined street with trees and bushes on the corners. Trees and bushes on the northwest corner of Myrtle "could be" the reason he didn't see the other car. When he was a block away from Myrtle he could see 20 feet north of North Avenue on Myrtle. Camire testified that he knew he was going to go through the traffic light regardless of what color it was, and he was honking his horn.

Grace Martindale, in her deposition, stated that on the day of the accident, she was stopped at a red traffic light for southbound traffic on Myrtle Avenue at its intersection with North Avenue. She stopped her car approximately at the white line painted on the street. From that position she had visibility to see eastbound traffic on North Avenue. Nothing obstructed her vision. She looked to her right in a westerly direction and although she could see "a good half block," she did not see any cars approaching. The light turned green, and she looked at the left and right and began to proceed slowly through the intersection. She did not hear anything unusual prior to her collision.

Plaintiff first contends that the trial court's granting of the city's motion for summary judgment on count II of plaintiff's fourth amended complaint was error. Count II alleged, inter alia, that the city had breached its duty to properly maintain the intersection of North and Myrtle Avenues by negligently failing to remove trees and bushes obstructing the view of drivers approaching the intersection. A motion for summary judgment should only be granted if 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. (Ill.Rev.Stat.1979, ch. 110, par. 57(3); Carruthers v. B. C. Christopher & Co. (1974), 57 Ill.2d 376, 380, 313 N.E.2d 457.) It is axiomatic that the purpose of summary judgment proceeding is not to try an issue of fact but to determine whether one exists. (Wainwright v. Truckenmiller (1981), 96 Ill.App.3d 1127, 1129-30, 52 Ill.Dec. 163, 421 N.E.2d 1026.) The right of the moving party must be free of doubt. (Peterson v. B/W Controls, Inc. (1977), 50 Ill.App.3d 1026, 1032, 9 Ill.Dec. 30, 366 N.E.2d 144.) It is also well established that the question of duty, i.e. whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon defendant an obligation of reasonable conduct for the benefit of the plaintiff, is an issue of law for the determination of the court. (Cunis v. Brennan (1974), 56 Ill.2d 372, 374, 308 N.E.2d 617; Mieher v. Brown (1973), 54 Ill.2d 539, 541, 301 N.E.2d 307.) The law applicable to motions for summary judgment which involve the issue of duty is set forth in Barnes v. Washington (1973), 56 Ill.2d 22, 305 N.E.2d 535:

" 'It may be stated generally that if what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered.' (Fooden v. Board of Governors, 48 Ill.2d 580, at 587, 272 N.E.2d 497.) This court has also held that the entry of a summary judgment is proper when only a question of law is involved. (Allen v. Meyer, 14 Ill.2d 284, 152 N.E.2d 576.) Thus, if under the pleadings and affidavits it appears that the defendant owed no duty to the incompetent, the granting of the motion for summary judgment was proper." (56 Ill.2d 22, 26-27, 305 N.E.2d 535, 538.)

Applying the above principles to the facts in this case, we find that the trial court correctly granted summary judgment for the city of Elmhurst on count II of the plaintiff's fourth amended complaint.

In attempting to argue that a material issue of fact exists, much of plaintiff's argument attempts to demonstrate that the view of the two drivers of other traffic approaching the intersection involved was obstructed by the city's failure to remove certain trees and bushes. Although an issue of fact may arguably exist as to whether the diagonal sight lines...