Crespo-Fregoso v. City of Chi.

• Decision Date: 09 August 2021
• Docket Number: 1-20-0972
• Citation: 2021 IL App (1st) 200972,192 N.E.3d 761,455 Ill.Dec. 932
• Parties: Lilian CRESPO-FREGOSO, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2021 IL App (1st) 200972

192 N.E.3d 761

455 Ill.Dec. 932

Lilian CRESPO-FREGOSO, Plaintiff-Appellant,

v.CITY OF CHICAGO, Defendant-Appellee.

No. 1-20-0972

Appellate Court of Illinois, First District, FIRST DIVISION.

Filed August 9, 2021

David J. Kupets, of Law Offices of Kupets & DeCaro, P.C., of Chicago, for appellant.

Celia Meza, Acting Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Justin A. Houppert, Assistant Corporation Counsel, of counsel), for appellee.

JUSTICE PIERCE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Lilian Crespo-Fregoso, fell in a pothole and injured herself while crossing a service drive next to her home. Plaintiff filed suit against the City of Chicago (City), alleging that the City's negligent failure to maintain the service drive proximately caused her physical and financial injury. The circuit court entered summary judgment in favor of the City on plaintiff's claim, holding that the City did not owe plaintiff a duty to maintain the service drive because plaintiff was not an intended and permitted user of the service drive at the time she was crossing. For the following reasons, we affirm the circuit court's judgment.

¶ 2 I. BACKGROUND

¶ 3 On January 7, 2018, plaintiff was traveling in her vehicle with her husband and daughter near 2158 North Central Avenue in Chicago. At that location, Central Avenue runs northbound and southbound. Adjacent to the southbound traffic lane is a one-block service drive. The service drive is to the west of southbound Central Avenue, with a grassy median between it and southbound Central Avenue. There is a sidewalk on the grassy median closest to southbound Central Avenue, between the service drive and Central. This sidewalk ends midblock. Vehicles park on the east and west sides of the service drive.

¶ 4 There are two homes on the west side of the service drive that face each other, in a north-south direction. There is no sidewalk along the west side of the service drive, but there is a small concrete pathway that leads perpendicularly from the curb to a gate in between the two homes.

¶ 5 At the south end of the service drive is a parking area with several perpendicular parking spaces. Plaintiff's husband parked their vehicle across the street from plaintiff's home in the northernmost perpendicular spot on the east side of the service drive. Plaintiff exited the vehicle and removed four bags of groceries from the back seat. Plaintiff walked onto the sidewalk on the east side of the service drive, down a curb cut that led into the service drive, and proceeded west. As she walked across the service drive, plaintiff fell into a pothole that was approximately two feet in diameter and three to five inches deep. Plaintiff testified she was aware of the pothole and attempted to walk around it, but she slipped on snow and ice on the street. Plaintiff's left leg fell into the pothole, causing her to hit her head on the ground.

¶ 6 Below is an image from exhibit 1 to plaintiff's deposition, on which plaintiff marked an X at the location where her car was parked and traced in black her path across the service drive from her parked car to the pothole. Plaintiff's home is marked by a red dot. North and southbound Central Avenue, the grassy median and the sidewalk are shown at the top of the image.

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¶ 7 On January 8, 2017, Plaintiff sought medical treatment for her injuries. Plaintiff was referred to an orthopedist, who diagnosed her with inflammation and tears to ligaments and cartilage in her left leg. Plaintiff also complained of lower back pain related to the incident. Plaintiff was treated with physical therapy and surgery to her left leg. However, she did not see improvement to her condition. Plaintiff continues to experience pain and limitation of activities such as walking and standing.

¶ 8 On April 11, 2019, plaintiff filed an amended complaint against the City of Chicago, alleging that its negligent failure to maintain the service drive resulted her injury. The City filed an answer and affirmative defenses, and the case proceeded to discovery.

¶ 9 On February 21, 2020, the City moved for summary judgment on plaintiff's one-count amended complaint pursuant to section 2-1005 of the Code of Civil Procedure ( 735 ILCS 5/2-1005 (West 2018) ). Attached to the motion were the amended complaint, plaintiff's deposition, plaintiff's answers to interrogatories, and an excerpt of section 3B.18 from the Manual on Uniform Traffic Control Devices for Streets and Highways (Manual) (U.S. Dep't of Transp., Fed. Highway Admin., Manual on Uniform Traffic Control Devices for Streets and Highways (2009 ed. incorporating rev. 1 & 2 May 2012), https://mutcd.fhwa.dot.gov/pdfs/2009r1r2/ mutcd2009r1r2edition.pdf [https://perma.cc/26JB-9ZBT]), which was adopted pursuant to statute ( 625 ILCS 5/11-301 (West 2018) ). The City argued that it was not liable for plaintiff's injury because (1) plaintiff was not an intended and permitted user of the service drive; (2) the pothole was an open and obvious condition; and (3) plaintiff slipped on a natural accumulation of ice, not the pothole.

¶ 10 Plaintiff filed a response, attaching her deposition, the deposition of William Little, a public way inspector with the City of Chicago Department of Transportation, and the deposition of Joaquin Lazo, an asphalt helper for the City of Chicago. The City filed a reply.

¶ 11 On May 5, 2020, the circuit court granted the City's motion and entered summary judgment in favor of the City. In its written order, the circuit court stated that plaintiff was not an intended and permitted user of the service drive where she fell because plaintiff was not crossing at either an intersection or a marked crosswalk.

¶ 12 Plaintiff filed a motion to reconsider, arguing that the unique configuration of North Central Avenue near where plaintiff fell raised a question of fact as to whether she was an intended and permitted user of the service drive. The City filed a response. On August 26, 2020, the circuit court entered an order denying plaintiff's motion.

¶ 13 On September 14, 2020, plaintiff filed a timely notice of appeal.

¶ 14 II. ANALYSIS

¶ 15 On appeal, plaintiff argues that the circuit court erred in entering summary judgment in favor of the City because she was an intended and permitted user of the service drive where she fell.

¶ 16 "Summary judgment should not be granted unless the pleadings, depositions and admissions on file, together with any affidavits, reveal that no genuine issue of material fact exists so that the movant is entitled to judgment as a matter of law." Cook v. Village of Oak Park , 2019 IL App (1st) 190010, ¶ 14, 438 Ill.Dec. 64, 145 N.E.3d 600 (citing 735 ILCS 5/2-1005(c) (West 2016)). We review the circuit court's ruling on summary judgment de novo. Id.

¶ 17 "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." Gutstein v. City of Evanston , 402 Ill. App. 3d 610, 616, 341 Ill.Dec. 26, 929 N.E.2d 680 (2010). "Whether the City owed plaintiff a duty of care is a question of law for the court to decide." Id.

¶ 18 A. Plaintiff Was Not an Intended and Permitted User of the Street

¶ 19 The Local Governmental and Governmental Employees Tort Immunity Act provides that

"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 2018).

Thus, the first inquiry into whether the City owes a duty to plaintiff is whether plaintiff was an "intended and permitted" user of the service drive. Princivalli v. City of Chicago , 202 Ill. App. 3d 525, 528, 147 Ill.Dec. 850, 559 N.E.2d 1190 (1990). The act is in derogation of the common law, so it must be strictly construed against the City. Vaughn v. City of West Frankfort , 166 Ill. 2d 155, 158, 209 Ill.Dec. 667, 651 N.E.2d 1115 (1995).

¶ 20 Plaintiff argues that she was an intended and permitted user of the service drive at the time she was injured because she crossed in an unmarked but intended crosswalk.

¶ 21 Generally, "since pedestrians are not intended users of streets, a municipality does not owe a duty of reasonable care to pedestrians who attempt to cross a street outside the crosswalks." Id. The rationale behind this rule is that the street is for use by vehicles, not pedestrians, "except under certain limited circumstances, i.e., ‘where defendant has provided crosswalks or the like.’ " Curatola v. Village of Niles , 154 Ill. 2d 201, 210, 181 Ill.Dec. 631, 608 N.E.2d 882 (1993) (quoting Risner v. City of Chicago , 150 Ill. App. 3d 827, 831, 104 Ill.Dec. 94, 502 N.E.2d 357 (1986) ). The Illinois Vehicle Code defines a crosswalk as

‘‘(a) That part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in the absence of curbs, from the edges of the traversable roadway, and in the absence of a sidewalk on one side of the highway, that part of the highway included within the extension of the lateral line of the existing sidewalk to the side of the highway without the sidewalk, with such extension forming a right angle to the centerline of the highway;

(b) Any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface placed in accordance with the provisions in the Manual adopted by the Department of Transportation as authorized in Section 11-301.’’ 625 ILCS 5/1-113 (West 2018).

¶ 22 The Manual, adopted pursuant to section 11-301 of the Illinois Vehicle Code ( 625 ILCS 5/11-301 (West 2018) ), provides the manner...