Gabriel v. City of Edwardsville

• Decision Date: 04 December 1992
• Docket Number: No. 5-91-0402,5-91-0402
• Citation: 178 Ill.Dec. 309,237 Ill.App.3d 649,604 N.E.2d 565
• Parties: , 178 Ill.Dec. 309 Mary GABRIEL, Plaintiff-Appellee, v. CITY OF EDWARDSVILLE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 565

604 N.E.2d 565

237 Ill.App.3d 649, 178 Ill.Dec. 309

Mary GABRIEL, Plaintiff-Appellee, v. CITY OF EDWARDSVILLE, Defendant-Appellant.

No. 5-91-0402.

Appellate Court of Illinois Fifth District.

Dec. 4, 1992.

Robert W. Wilson, Alexander M. Wilson, Evans & Dixon, Edwardsville, for defendant-appellant.

Sharon A. Knapp, Carr Korein Kunin Tillery Montroy Glass & Bogard, Belleville, for plaintiff-appellee.

Justice HENRY LEWIS delivered the opinion of the court:

Plaintiff, Mary Gabriel, brought this action against defendant, City of Edwardsville, to recover injuries she sustained when she walked into the street about five or six steps and tripped over a water-main cover while on her way to her son's house. Plaintiff was not walking within a crosswalk when she fell. Plaintiff contends that defendant had a duty to maintain the street and that its failure to repair the raised water main cover created a dangerous condition. On August 29, 1990, the defendant moved for summary judgment. One of defendant's alleged grounds for summary judgment was that a municipality owes no duty to pedestrians crossing the street outside of the crosswalk. The circuit court denied the defendant's motion for summary judgment. Subsequently, at the close of the plaintiff's case, the defendant moved for a directed verdict, alleging that the plaintiff had failed to show that the City of Edwardsville breached a duty of care. The circuit court denied the defendant's motion. Two days later, at the close of all of the evidence, the defendant renewed his motion for a directed verdict. Once again the circuit court denied the defendant's motion. On April 11, 1991, the jury returned a verdict in favor of the plaintiff for $14,361.14, and judgment was entered accordingly. The defendant filed a post-trial motion on May 3, 1991. On May 17, 1991, the circuit court denied the defendant's post-trial motion.

Defendant appeals, claiming that the City of Edwardsville had no duty to safeguard the plaintiff, a pedestrian, who was using the street as a walkway and was not within the crosswalk.

Plaintiff counters with the argument that a duty existed because she was an intended and permitted user of the street. Because the sidewalk ended on the side of the street in which she was walking, she argues she was required to walk across the street. This argument is based upon section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act which states as follows:

"Except as otherwise provided in this Article, 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, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition." (Emphasis added.) (Ill.Rev.Stat.1985, ch. 85, par. 3-102(a).)

Thus, for a pedestrian to be protected by this statute, he must be a permitted and intended user of the property under control of the city. (Wojdyla v. City of Park Ridge (1992), 148 Ill.2d 417, 422, 170 Ill.Dec. 418, 421, 592 N.E.2d 1098, 1101.) Further, to establish a cause of action for negligence, the plaintiff must show that the defendant owed a duty of care, the defendant breached the duty, and an injury was proximately caused by the breach. (Wojdyla, 148 Ill.2d at 421, 170 Ill.Dec. at 420, 592 N.E.2d at 1100.) We agree with the defendant that no duty existed; therefore, we reverse.

Defendant has cited several cases in support of its view that the plaintiff was not an intended and permitted user of the street. The case which is most analogous to the case at bar is Greene v. City of Chicago (1991), 209 Ill.App.3d 311, 153 Ill.Dec. 899, 567 N.E.2d 1357. In Greene, the plaintiff, a pedestrian, fell into a pothole in the street while on his way to a friend's house. The plaintiff was not walking within a crosswalk when he fell. The circuit court granted summary judgment for the defendant and stated that the streets are made for automobiles, not for pedestrians, except at intersections where there are marked or unmarked crosswalks. The appellate court agreed with the circuit court and held that a municipality owes no duty to warn pedestrians of any hazards outside of the crosswalk when a pedestrian is not using the crosswalk. (Greene, 209 Ill.App.3d at 313, 153 Ill.Dec. at 900, 567 N.E.2d at 1358.) Several other cases have held likewise. (Curatola v. Village of Niles (1992), 230 Ill.App.3d 743, 746, 174 Ill.Dec. 313, 314, 598 N.E.2d 945, 946; Vlahos v. City of Chicago (1988), 198 Ill.App.3d 911, 913, 145 Ill.Dec. 42, 43, 556 N.E.2d 660, 661; Mason v. City of Chicago (1988), 173 Ill.App.3d 330, 331, 123 Ill.Dec. 109, 110, 527 N.E.2d 572, 573; Risner v. City of Chicago (1986), 150 Ill.App.3d 827, 831, 104 Ill.Dec. 94, 97, 502 N.E.2d 357, 360.) When pedestrians use the public streets as walkways, the law imposes no general duty upon a municipality to safeguard pedestrians. (Greene, 209 Ill.App.3d at 313, 153 Ill.Dec. at 900, 567 N.E.2d at 1358; Vlahos, 198 Ill.App.3d at 913, 145 Ill.Dec. at 43, 556 N.E.2d at 661; Mason, 173 Ill.App.3d at 332, 123 Ill.Dec. at 110, 527 N.E.2d at 573; Deren v. City of Carbondale (1973), 13 Ill.App.3d 473, 477, 300 N.E.2d 590, 593.) To impose such a duty on a municipality would overextend its function. (Curatola, 230 Ill.App.3d at 745, 174 Ill.Dec. at 314, 598 N.E.2d at 946; Greene, 209 Ill.App.3d at 313, 153 Ill.Dec. at 900, 567 N.E.2d at 1358; Mason, 173 Ill.App.3d at 332, 123 Ill.Dec. at 110, 527 N.E.2d at 573; Deren, 13 Ill.App.3d at 478, 300 N.E.2d at 593.) Hence, the law is clear that a municipality owes no duty to a pedestrian crossing a public street outside of the crosswalk. Greene, 209 Ill.App.3d at 313, 153 Ill.Dec. at 900, 567 N.E.2d at 1358; Vlahos, 198 Ill.App.3d at 913, 145 Ill.Dec. at 43, 556 N.E.2d at 661; Mason, 173 Ill.App.3d at 332, 123 Ill.Dec. at 110, 527 N.E.2d at 573; Deren, 13 Ill.App.3d at 478, 300 N.E.2d at 593.

The street is to be used for vehicular traffic--not pedestrians (Risner, 150 Ill.App.3d at 831, 104 Ill.Dec. at 96, 502 N.E.2d at 359), and it is reasonable that a municipality would foresee that only vehicular traffic would use the street (Curatola, 230 Ill.App.3d at 746, 174 Ill.Dec. at 315, 598 N.E.2d at 947; Mason, 173 Ill.App.3d at 332, 123 Ill.Dec. at 110, 527 N.E.2d at 573), while pedestrians would use the crosswalk to cross to the other side of a street (Mason, 173 Ill.App.3d at 332, 123 Ill.Dec. at 110, 527 N.E.2d at 573). Even when a street is continuously used by pedestrians, we find no Illinois authority which permits the conversion of the street into a sidewalk. (Deren, 13 Ill.App.3d at 477, 300 N.E.2d at 593.) Further, a municipality has no duty to install sidewalks; therefore, it is unreasonable to require a municipality to continue an existing sidewalk. (Frakes v. Martin (1987), 151 Ill.App.3d 676, 678, 104 Ill.Dec. 841, 843, 503 N.E.2d 556, 558; Best v. Richert (1979), 72 Ill.App.3d 371, 374, 27 Ill.Dec. 663, 665, 389 N.E.2d 894, 896.) Thus, the plaintiff was not an "intended" user of the street because the streets are designated for use by vehicular traffic--not pedestrians. (Ramirez v. City of Chicago (1991), 212 Ill.App.3d 751, 753, 156 Ill.Dec. 842, 846, 571 N.E.2d 822, 826.) Therefore, we need not determine whether the plaintiff was a "permitted" user of the street because to prove that the City owed a duty, the plaintiff must show that she was both an "intended" and a "permitted" user of the street. Ramirez, 212 Ill.App.3d at 753, 156 Ill.Dec. at 846, 571 N.E.2d at 826.

Plaintiff cites Di Domenico v. Village of Romeoville (1988), 171 Ill.App.3d 293, 121 Ill.Dec. 436, 525 N.E.2d 242, for the proposition that municipalities have a duty to pedestrians in areas other than crosswalks. In Di Domenico, 171 Ill.App.3d at 294, 121 Ill.Dec. at 437, 525 N.E.2d at 243, the plaintiff was injured when he fell into a hole while walking on the street to obtain some items from the trunk of his legally parked vehicle. The Di Domenico court concluded that since the City permitted curbside parking on the street where the plaintiff fell into the hole that the City must have realized that pedestrians would be walking on that portion of the street as a means of ingress and egress to and from their vehicles. (Di Domenico, 171 Ill.App.3d at 295, 121 Ill.Dec. at 437, 525 N.E.2d at 243.) The instant case, however, does not present a similar factual situation. Therefore, we conclude that the City has no duty to a pedestrian such as the plaintiff who walked into the street about five to six steps and tripped over a water-main cover. The plaintiff in the present case was not en route to or from her motor vehicle but was crossing the street outside the crosswalk to go to her son's house; thus, Di Domenico is distinguishable.

Further, our supreme court recently reiterated the well-established principles that the streets are for the use of moving automobiles and no duty attaches when pedestrians cross the street outside of a crosswalk. (Wojdyla, 148 Ill.2d at 425, 170 Ill.Dec. at 422, 592 N.E.2d at 1102.) In fact, the Wojdyla court stated as follows "The roads are paved, marked and regulated by traffic signs and signals for the benefit of automobiles. Parking lanes are set out according to painted blocks on the pavement, signs or meters on the sidewalk or parkway, or painted markings on the curb. Pedestrian walkways are designated by painted crosswalks by design, and by intersections by custom. These are the indications of intended use. That pedestrians may be permitted to cross the street mid-block does...