Cunis v. Brennan

• Decision Date: 03 August 1972
• Docket Number: Nos. 54252,54353,s. 54252
• Citation: 287 N.E.2d 207,7 Ill.App.3d 204
• Parties: Frank CUNIS, a minor, by his next friend, William Cunis, individually and for the use of William Cunis and Joyce Cunis, Plaintiffs- Appellees. v. James M. BRENNAN et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 207

287 N.E.2d 207

7 Ill.App.3d 204

Frank CUNIS, a minor, by his next friend, William Cunis individually and for the use of William Cunis and Joyce Cunis, Plaintiffs- Appellees. v. James M. BRENNAN et al., Defendants-Appellees.

Nos. 54252, 54353.

Appellate Court of Illinois, First District, Third Division.

Aug. 3, 1972.

Rehearing Denied Sept. 14, 1972.

John B. Schwartz, Mitgang, Levine & Schwartz, Chicago, for plaintiffs-appellants.

Baker & McKenzie, Chicago, for defendants-appellees.

McGLOON, Presiding Justice:

In a personal injury action against the Village of LaGrange, hereinafter referred to as the defendant, and others, the trial court granted defendant's motion to dismiss the minor plaintiff's second amended complaint for failure to state a cause of action. The plaintiff appeals this dismissal.

We reverse and remand.

The relevant facts are as follows: On December 15, 1967, the plaintiff, a minor, was riding as a passenger in a northbound automobile on Brainard Street within the defendant village. At the intersection of Brainard and Ogden the car in which plaintiff was riding was struck by another car, driven by one James Brennan, who was proceeding westbound on Ogden. The resulting impact caused plaintiff to be ejected from the vehicle and hurled upon the parkway (the area between the sidewalk and curb) at the northwest corner of the intersection. Upon landing on the parkway plaintiff's leg was impaled upon a sharp, rusty object protruding from the ground. This object was later identified as the remains of a gas or water drain pipe. It was located at a point approximately 4 1/2 feet west of the west curb of Brainard and 5 1/2 feet north of the north edge of the north sidewalk of Ogden.

The resulting injury sustained by the plaintiff necessitated the amputation of the impaled leg. The plaintiff, acting through his father as next friend, brought suit against various parties including the instant defendant. The gist of plaintiff's complaint was that the defendant was under a duty to maintain its sidewalks and parkways in a safe condition. Plaintiff alleged a breach of this duty as evidenced by the presence of the rusty, defective and dangerous drain pipe and that this breach was a proximate cause of his injuries. The remainder of the complaint sought to allege the additional necessary elements of a cause of action for negligence.

The only question presented on this appeal is whether the plaintiff's complaint states a good cause of action. In attempting to answer that question, it is well settled that by virtue of its motion to dismiss the defendant admits the truth of all the well pleaded facts in the plaintiff's complaint but not any of the conclusions therein. Sundin v. Hughes (1969), 107 Ill.App.2d 195, 246 N.E.2d 100.

On appeal the plaintiff urges that his complaint contained sufficient allegations to state a cause of action. The defendant urges the opposite and argues specifically that it had no duty of care with regard to the instant plaintiff and further that the presence of the alleged hazardous object was not the proximate cause of the plaintiff's injuries.

In support of its position that no duty of care was owed to the instant plaintiff, defendant argues that its duty is determined by the character of the use plaintiff made of its parkway. In other words, defendant argues that a municipality has a duty to maintain its streets and parkways so that they will be reasonably safe for the purpose for which they were intended and no more. For example, since the purpose of sidewalks is to accommodate pedestrian travel, a municipality has fulfilled its duty if its sidewalks are reasonably safe for that purpose. It is defendant's position that parkways are devoted to the planting of grass and trees and for placement of fire hydrants, telephone poles, etc., but not as a 'landing place' for ejected automobile occupants.

The defendant makes an additional argument which is, we think, simply a restatement of his first argument in more traditional terms. That is, it was under no duty to anticipate extraordinary or unforeseeable happenings or to provide against every possible danger.

It is a general maxim of law, repeated in cases too numerous to cite, that it is the duty of a municipal corporation to exercise ordinary care to keep its streets and sidewalks reasonably safe for persons exercising ordinary care. In Illinois this duty applies to parkways as well as streets and sidewalks. Caruso v. City of Chicago (1934), 278 Ill.App. 247.

Under the allegations of plaintiff's complaint, it is clear that the instant defendant failed that duty by allowing a clearly dangerous instrumentality to remain on its parkway. However, defendant would have us restrict its accountability insofar as the instant plaintiff is concerned, because his use of the parkway was allegedly not a characteristic or foreseeable use thereof. We disagree.

We recognize the general rule that it is the duty of a municipal corporation to exercise ordinary care to keep its streets and sidewalks reasonably safe for persons exercising ordinary care but that a municipality is not an insurer against accidents or liable for every accident occurring within its limits. Storen v. City of Chicago (1940), 373 Ill. 530, 27 N.E.2d 53. However, we also recognize that even under the most liberal analysis, the existence of this obviously dangerous and defective instrumentality on its parkway raised a serious question as to defendant's negligence. To say as a matter of law that defendant owed no duty of care to the plaintiff because the instant facts point up an uncharacteristic or unforeseeable use...