Filipetto v. Village of Wilmette, 1-90-3480

• Decision Date: 15 September 1993
• Docket Number: No. 1-90-3480,1-90-3480
• Citation: 627 N.E.2d 60,193 Ill.Dec. 901,254 Ill.App.3d 461
• Parties: , 193 Ill.Dec. 901 Daniel FILIPETTO, a Minor, by his father and next friend, G. Filipetto, Plaintiff-Appellee, v. The VILLAGE OF WILMETTE, a Municipal Corporation, Defendant-Appellant (Artley Paving Corporation and William J. Scown Building Company, Defendants).
• Court: United States Appellate Court of Illinois

Page 60

627 N.E.2d 60 254 Ill.App.3d 461, 193 Ill.Dec. 901 Daniel FILIPETTO, a Minor, by his father and next friend, G.
Filipetto, Plaintiff-Appellee,
v.
The VILLAGE OF WILMETTE, a Municipal Corporation,
Defendant-Appellant (Artley Paving Corporation and
William J. Scown Building Company, Defendants). No. 1-90-3480. Appellate Court of Illinois,
First District, Third Division. Sept. 15, 1993.

Page 61

[193 Ill.Dec. 902] [254 Ill.App.3d 462] Kralovec, Marquard, Doyle & Gibbons, Chtd., Chicago (Nancy J. Arnold, David T. Nani, of counsel), for defendant-appellant--Village of Wilmette.

Barclay & Damisch, Ltd., Chicago (Mark W. Damisch, Michael Svanascini, John W. Damisch, Michael J. Kedzie, of counsel), for plaintiff-appellee.

Justice CERDA delivered the opinion of the court:

Plaintiff, Daniel Filipetto, a minor, brought an action to recover for injuries sustained when his bicycle ran into an unattended air compressor on the street. After a jury trial, a $389,761.62 verdict was rendered in favor of plaintiff with the percentage of negligence attributed to him being 20%. Of the remaining 80%, 55% was attributed to defendant, Artley Paving Company (Artley), which subsequently settled its case with plaintiff, and 45% was attributed to defendant, the Village of Wilmette (the Village).

On appeal, the Village asserts that (1) plaintiff's claim failed to state a viable cause of action because the Village did not owe plaintiff a duty to enforce laws; (2) plaintiff's claim failed to state a cause of action because it was predicated on a duty to guard against plaintiff's own negligence; (3) a judgment notwithstanding the verdict is warranted because plaintiff's own evidence demonstrated that no act by the Village was a proximate cause of his accident; and (4) the judgment was based on erroneously admitted expert testimony. We affirm the jury's verdict.

At issue in this case is whether a municipality has a duty to safely maintain its streets extends to persons using a public street even though that person sees road repair equipment located farther up the street.

Plaintiff, who was 16 years old at the time of the accident, testified that he was riding his bicycle to work at 10:15 a.m. on August 14, 1980. After turning into the far right lane of Wilmette Avenue, which is a four lane

Page 62

[193 Ill.Dec. 903] road in a residential neighborhood, plaintiff saw an object about 450 feet ahead on the right side of the road. When plaintiff was about 50 feet from the object, which was the air compressor, he put his hands on the brakes because he planned to go around the compressor. Plaintiff did not see any cones, signs, or barricades near the compressor.

[254 Ill.App.3d 463] When plaintiff was about 10 feet from the compressor, he looked over his left shoulder to check for vehicles. There was an automobile about 25 feet behind him. Thinking he had room to go around the compressor, plaintiff moved into the left lane, but the automobile was closer than he realized. As the car swerved toward him, plaintiff realized that he and the car were going to collide. At that point, there were two to three feet between the car and the compressor. Plaintiff moved back to his right to avoid a collision with the automobile and struck the compressor's A-frame. He flew over the handlebars, striking his face on a nozzle protruding from the compressor.

In his complaint, plaintiff alleged that the Village breached its duty to maintain its roadway in a safe condition in that it allowed paving equipment (1) to be parked on the street longer than was necessary; (2) to disrupt and obstruct the flow of traffic; (3) to be on the street without barricades and lights; (4) to be on the street without warning signs; and (5) to be on the street without guidance signs to direct the flow of traffic.

There were no eyewitnesses to the accident, but a taxi cab driver, John Nierodzik, arrived at the scene about three minutes later. Nierodzik testified that he was driving westbound on Wilmette Avenue on the day of the accident. As he drove by the compressor, he saw plaintiff on the ground under the compressor with the bicycle on top of the compressor.

Nierodzik did not see any barricades next to the compressor, but did see one sawhorse on the curb. Nierodzik called for an ambulance. Plaintiff told Nierodzik that he was getting ready to go around the compressor when a car came up behind him, frightening him.

Arthur Levy, Artley's vice-president, testified extensively about barricades, cones, and channelization. According to Levy, Artley placed the air compressor at the site in preparation for street repair work being done for the Village. Levy explained that Artley worked pursuant to the Village's guidelines and specifications under the contract between Artley and the Village.

Levy described the compressor as five feet high, seven feet long, four feet wide, and extending almost five feet from the curb into the roadway with the front of the compressor facing plaintiff. An A-frame trailer hitch on which the compressor rested extended five feet nine inches in front of the compressor, parallel to the north curb.

Although Levy testified that he was not aware of the Illinois Manual for Uniform Traffic Control Devices for Streets and Highways, he admitted that it included the following standard that applied to the jobsite: "During working hours, all vehicles and/or non-operating [254 Ill.App.3d 464] equipment which are parked for a short period, two hours or less, shall be parked at least eight feet from moving traffic." Manual for Uniform Traffic Control Devices for Streets and Highways effective January 2, 1980, par. 107.14 (hereinafter State Manual).

Earl Bondy, the Village's engineering field inspector, testified regarding his duties of enforcing construction safety rules. Raymond Heinz, Artley's foreman, testified that he placed the compressor at the scene of the accident about 15 to 20 minutes before the accident occurred. He had placed a sawhorse barricade in the street in front of the compressor but did not place any other cones or barricades at the site.

Dr. Roland Ruhl, a registered engineer, testified as plaintiff's expert witness. Dr. Ruhl read three Village ordinances. Section 16-12.3, Excavation Construction Requirements...