Curatola v. Village of Niles

• Decision Date: 28 January 1993
• Docket Number: No. 73474,73474
• Citation: 154 Ill.2d 201,608 N.E.2d 882,181 Ill.Dec. 631
• Parties: , 181 Ill.Dec. 631 Carl CURATOLA, Appellant, v. The VILLAGE OF NILES, Appellee.
• Court: Illinois Supreme Court

Page 882

608 N.E.2d 882

154 Ill.2d 201, 181 Ill.Dec. 631

Carl CURATOLA, Appellant, v. The VILLAGE OF NILES, Appellee.

No. 73474.

Supreme Court of Illinois.

Jan. 28, 1993.

Bruce D. Goodman, Bradley D. Steinberg and Margaret P. Griffiths, Steinberg, Polacek & Goodman, Lewis, Davidson & Heatherington, Ltd., Chicago, for appellant.

Robert M. Zelek, Chicago, for amicus curiae, Illinois Trial Lawyers Ass'n.

Kelly R. Welsh, Corp. Counsel, Chicago, (Lawrence Rosenthal, Mardell Nereim and Stephen Glockner, of counsel), for amicus curiae, City of Chicago.

Richard T. Ryan and Mark F. Smolens, Flynn, Murphy, Ryan & Seyring, Chicago, for appellee.

Justice FREEMAN delivered the opinion of the court:

Plaintiff, Carl Curatola, filed a negligence action in the circuit court of Cook County against defendant, the Village of Niles (Niles). Curatola sought to recover damages sustained when he stepped from the rear of his parked truck onto the street which is owned and maintained by Niles. Defendant filed a motion for summary judgment (Ill.Rev.Stat.1987, ch. 110, par. 2-1005) pursuant to section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill.Rev.Stat.1987, ch. 85, par. 3-102(a)). Section 3-102(a) 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 * * *." Ill.Rev.Stat.1987, ch. 85, par. 3-102(a).

In support of the motion for summary judgment, defendant presented plaintiff's deposition testimony which revealed the following. On March 2, 1983, Curatola was working as a semi-truck driver, making deliveries of general commodities to various businesses. When Curatola arrived at Joseph Electronics, one of that firm's employees directed him to position his truck so that the employees could unload it. Curatola parallel parked the truck alongside the southern curb of Elizabeth Street so that the rear driver's side of the trailer was about six inches from the curb. The driveway leading to the business was to the rear of the trailer. Curatola exited his truck, opened the rear door of the trailer, went inside and moved cartons to the rear of the trailer for the firm's employees to unload. After the cartons were removed from the truck, Curatola closed the trailer's door, stepped down to the truck's lower bumper and then to the street below. As he stepped onto the street, he twisted his foot on the edge of a pothole and fell down. The pothole appeared to Curatola to be about seven feet from the curb. Photographic evidence in support of the motion revealed that the hole was located directly in front of the mouth of the driveway.

According to the trial court, such evidence supported the view that Curatola's vehicle was parked in front of the driveway and, hence, he could not be considered an "intended and permitted" user of the street under the rationale of Di Domenico v. Village of Romeoville (1988), 171 Ill.App.3d 293, 121 Ill.Dec. 436, 525 N.E.2d 242 (operator and passengers ingressing and egressing legally parked vehicle are permitted and intended users of immediate street to whom duty owed under Act). The trial court thus granted defendant's motion for summary judgment. Curatola subsequently moved the court to reconsider, presenting evidence that his vehicle did not block or interfere with the use of the driveway, nor did its parking violate municipal ordinances. The trial court, however, denied Curatola's motion to reconsider, citing a recent decision, Vlahos v. City of Chicago (1990), 198 Ill.App.3d 911, 145 Ill.Dec. 42, 556 N.E.2d 660, which rejected the reasoning of Di Domenico and held that a municipality owes no duty to a pedestrian who steps off a curb into the street where no crosswalk exists.

Plaintiff subsequently appealed. The appellate court affirmed (230 Ill.App.3d 743, 174 Ill.Dec. 313, 598 N.E.2d 945). The court relied on Vlahos as well as expressed the view that, under the Act, the scope of a municipality's duty does not include "deliverymen utilizing the street as an unloading zone." (230 Ill.App.3d at 746, 174 Ill.Dec.

                [181 Ill.Dec. 633] 313, 598 N.E.2d 945.)   We granted plaintiff's petition for leave to appeal (134 Ill.2d R. 315(a)) and allowed the filing of amicus curiae briefs from the City of Chicago (City) and the Illinois Trial Lawyers Association
                

The sole issue presented for review is whether the trial court properly granted summary judgment determining that defendant owed plaintiff no duty to maintain the street area immediately around his parked vehicle. We review as well the related order denying reconsideration which was entered prior to the notice of appeal. See Sears v. Sears (1981), 85 Ill.2d 253, 258, 52 Ill.Dec. 608, 422 N.E.2d 610 (order denying post-judgment motion is not itself a judgment and is not appealable, but is reviewable as related order entered prior to notice of appeal); see also Archer Daniels Midland Co. v. Barth (1984), 103 Ill.2d 536, 538, 83 Ill.Dec. 332, 470 N.E.2d 290 (a motion to reconsider falls within the category of post-judgment motions).

Having fully considered the issue, we reverse and remand.

DISCUSSION

Curatola asserts that the evidence he presented in support of the motion to reconsider established that his vehicle was legally parked at the time of his fall. The Village concedes that no evidence was presented contravening this fact. (See Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill.2d 580, 587, 272 N.E.2d 497 (when well-alleged facts are not contradicted by counter-affidavit, they must be taken as true).) Consequently, we consider Curatola's vehicle as being legally parked when he fell.

According to Curatola, Niles had a duty to maintain the street area immediately around his legally parked vehicle under a rationale expressed in Di Domenico and followed in Torres v. City of Chicago (1991), 218 Ill.App.3d 89, 161 Ill.Dec. 31, 578 N.E.2d 158 (municipality had duty to maintain street immediately around legally parked vehicle, as operator who exited and fell in nearby pothole was intended and permitted user of street). Curatola asserts that Wojdyla v. City of Park Ridge (1992), 148 Ill.2d 417, 170 Ill.Dec. 418, 592 N.E.2d 1098, decided after the appellate court's decision in the instant case, also approvingly cites to and follows Di Domenico. Curatola maintains that under a reasonable interpretation of the Act, usage of the street immediately around a legally parked vehicle by its operator and occupants is both intended and foreseeable, as there is no other practical means of entering or exiting such vehicle. He further maintains that recognition of a duty to maintain that particular area imposes no unwarranted burden on municipalities. The Illinois Trial Lawyers Association expresses the view that a municipality's duty of care must logically encompass persons who legally park their vehicles on city streets, and that the extent of that duty is both limited and clear.

Niles, having conceded that Curatola's vehicle was legally parked, also concedes that he may be considered a "permitted" user under section 3-102. Niles argues, however, that he was not an "intended" user under this provision because he was injured while engaged in or subsequent to using the street as a commercial loading dock. Niles cites to Ramirez v. City of Chicago (1991), 212 Ill.App.3d 751, 156 Ill.Dec. 842, 571 N.E.2d 822, Greene v. City of Chicago (1991), 209 Ill.App.3d 311, 153 Ill.Dec. 899, 567 N.E.2d 1357, and Vance v. City of Chicago (1990), 199 Ill.App.3d 652, 145 Ill.Dec. 724, 557 N.E.2d 494, for support. Niles further argues that to discern "intended" use, a court must look to the property itself. (Wojdyla, 148 Ill.2d at 426, 170 Ill.Dec. 418, 592 N.E.2d 1098.) Niles asserts that, clearly, under this view, its streets were not intended for use as commercial loading docks. Niles claims it owed no duty to Curatola, nor should this court recognize such a duty under these circumstances. Imposition of such duty, according to Niles, would be burdensome to municipalities and an unwarranted extension of the Act. The City, as amicus curiae, requests us to reconsider the view expressed by this court in Wojdyla that a person exiting his or her legally parked vehicle is an intended user of the street immediately around it. (Wojdyla, 148 Ill.2d at 422, 170 Ill.Dec. 418, 592 N.E.2d 1098.) Conceding that such usage is foreseeable, the City yet maintains that because vehicles primarily use parking lanes, it would be enormously burdensome to maintain those lanes for the use of pedestrians in the same condition as sidewalks. The enormity of that burden, the City further maintains, is dispositive of the fact that a municipality does not intend pedestrian usage in those areas. Furthermore, according to the City, the scope of the claimed duty is large and ill-defined.

To properly state a cause of action for negligence, the plaintiff must establish that the defendant owed a duty of care, a breach of that duty, and an injury proximately caused by the breach. (Curtis v. County of Cook (1983), 98 Ill.2d 158, 162, 74 Ill.Dec. 614, 456 N.E.2d 116.) Whether or not the duty of care exists is a question of law to be determined by the court (Pelham v. Griesheimer (1982), 92 Ill.2d 13, 18-19, 64 Ill.Dec. 544, 440 N.E.2d 96) and thus may be determined on a motion for summary judgment (Wojdyla, 148 Ill.2d at 421, 170 Ill.Dec. 418, 592 N.E.2d 1098).

A local governmental entity's duty is limited by the language of section 3-102(a) of the Act (Ill.Rev.Stat.1987, ch. 85, par. 3-102(a)). For a person to be protected under this provision, he or she must be an intended and permitted user of the property controlled by the local public entity. (See Wojdyl...