Marshall By Marshall v. City of Centralia

Decision Date21 March 1991
Docket NumberNo. 69907,69907
Citation155 Ill.Dec. 802,143 Ill.2d 1,570 N.E.2d 315
Parties, 155 Ill.Dec. 802 John MARSHALL, a Minor, by Evelyn MARSHALL, his Mother and Next Friend, Appellee, v. The CITY OF CENTRALIA, Appellant.
CourtIllinois Supreme Court

Judge & Knight, Ltd., Park Ridge (Jay S. Judge, Sarah Hansen Sotos and Kathryn M. James, of counsel), for appellant.

Kujawski & Faerber, P.C., Belleville (Fritz G. Faerber, of counsel), for appellee.

Kenneth J. Sophie, Jr., of the Law Offices of Gerard Facchini, Chicago, for amicus curiae Illinois Trial Lawyers Ass'n.

Kelly R. Welsh, Corp. Counsel, Chicago (Ruth M. Moscovitch, Chief Asst. Corp. Counsel, and Jean Dobrer, Asst. Corp. Counsel, of counsel), for amicus curiae City of Chicago.

Justice THOMAS J. MORAN delivered the opinion of the court:

The mother of the plaintiff, Evelyn Marshall, as the plaintiff's next friend, filed a complaint on behalf of her son, John Marshall, in the circuit court of Marion County, for injuries allegedly caused by the negligence of the defendant, the City of Centralia. Her son was injured when he stepped into an open sewer manhole on a parkway owned by the defendant. The defendant denied any liability and made a motion for summary judgment (Ill.Rev.Stat.1987, ch. 110, par. 2-1005). The trial court granted the motion, finding that no facts were pled which would indicate that the city owed a duty to the plaintiff. The appellate court reversed and remanded. (193 Ill.App.3d 334, 140 Ill.Dec. 1, 549 N.E.2d 652.) This court allowed defendant's petition for leave to appeal (107 Ill.2d R. 315). The Illinois Trial Lawyers Association and the City of Chicago both filed briefs as amicus curiae in this cause.

The sole issue presented for review is whether the defendant had a duty to maintain the sewer manhole cover on its parkway for the benefit of the plaintiff, a pedestrian.

The plaintiff, who was the only witness to the accident, testified at a deposition that his injuries occurred as follows. On October 19, 1985, he left his home on McCord Street to visit a friend who lived on the same side of McCord, but approximately a block east of his home. In order to reach his destination, he walked east upon the sidewalk parallel to McCord. As he approached the intersection of McCord and Sycamore, he noticed that the sidewalk on the other side (east) of Sycamore was so muddy that there was no clean path to walk on. Before entering the crosswalk on Sycamore, he decided to leave the sidewalk and walk out in the street to avoid getting mud on his tennis shoes. In doing so, he walked across a grass-covered parkway between the sidewalk and street and, before he stepped into the street, he fell because his entire right leg sank into an open manhole. As a result of his fall, he injured his knee, leg, hand, and wrist.

The trial court granted the defendant's motion for summary judgment and entered judgment in favor of the defendant, finding that the city did not owe a duty to the plaintiff. The plaintiff appealed, and the appellate court held "that the city ha[d] a duty to cover open sewer drains located in a parkway at a corner in a residential area." 193 Ill.App.3d at 338-39, 140 Ill.Dec. 1, 549 N.E.2d 652.

The plaintiff maintains that the appellate court's holding was correct, because the city had a duty under the facts in this case to maintain its manholes and parkways for the benefit of the plaintiff. The defendant, on the other hand, claims that the parkway area, where the plaintiff fell, was not intended for pedestrian use and, therefore, the city owed no duty to the plaintiff.

In order to determine whether the defendant owed the plaintiff a duty, we must examine the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (Ill.Rev.Stat.1987, ch. 85, par. 1-101 et seq.). "The purpose of this Act is to protect local public entities and public employees from liability arising from the operation of government." (Ill.Rev.Stat.1987, ch. 85, par. 1-101.1(a).) The Act outlines certain limitations and exceptions whereby a governmental body would not be subject to suit for its conduct. Helle v. Brush (1973), 53 Ill.2d 405, 407, 292 N.E.2d 372.

The question of whether the defendant is liable to the plaintiff is governed by the limitation contained in section 3-102(a), which provides:

"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.1987, ch. 85, par. 3-102(a).

To properly state a cause of action for negligence, the plaintiff must establish that the defendant owed him 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.) The question of whether the defendant owed the plaintiff a duty of care is a question of law to be determined by the court. (McLane v. Russell (1989), 131 Ill.2d 509, 514, 137 Ill.Dec. 554, 546 N.E.2d 499.) Where the record only presents a question of law, a trial court may properly enter a motion for summary judgment. Allen v. Meyer (1958), 14 Ill.2d 284, 292, 152 N.E.2d 576.

The defendant's duty in the instant case is limited by the language of section 3-102(a) (Ill.Rev.Stat.1987, ch. 85, par. 3-102(a)), which "evinces a legislative intent to extend a duty of care only to those persons by whom the local government intended the property to be used." (Curtis, 98 Ill.2d at 164-65, 74 Ill.Dec. 614, 456 N.E.2d 116.) The defendant concedes in its brief that pedestrians, such as the plaintiff are permitted to walk upon its parkways. Therefore, we must determine whether the plaintiff was an intended user of the parkway.

The defendant maintains that while sidewalks are held out for pedestrian use, parkways are not. Parkways, according to the defendant, are intended to be used as "an area of beautification for trees, and so forth." Therefore, those who travel upon them do so at their own risk. The plaintiff and the Illinois Trial Lawyers Association contend that pedestrians are intended users of parkways because people customarily use parkways to: cut the lawn, plant shrubbery, gain access to parked cars, or stand on while others are permitted to pass by on the sidewalk.

The Act became effective in 1965 and since then only two Illinois cases have addressed the issue of whether a municipality is liable for injuries to persons from parkway conditions. Cunis v. Brennan (1974), 56 Ill.2d 372, 308 N.E.2d 617 (village had no legal duty to plaintiff where possibility was remote that person would be thrown from an automobile and impaled upon a broken drainpipe which protruded from a parkway); Palermo v. City of Chicago Heights (1971), 2 Ill.App.3d 1004, 276 N.E.2d 470 (city not liable because of inadequate notice when plaintiff fell into a hole in parkway after lid to meter box flipped over).

The defendant has invited this court to review a number of appellate court cases that have held no duty is owed to jaywalkers. We decline to analogize the instant case to a jaywalking case. According to the plaintiff's deposition testimony, he stepped into the hole before he reached the street. At plaintiff's deposition, the following colloquy took place:

"Q. Your next step would have been right out into the street?

A. Right."

Moreover, the trial judge found that the accident occurred on the parkway.

"THE COURT: * * * [I]t's not altogether clear that he ever reached the street. He stepped in that hole when he was on the boulevard and he never actually went into the street."

Prior to the passage of the Act, it was the common law of this State that a municipal corporation had a duty to exercise ordinary care to keep its parkways reasonably safe. Brennan v. City of Streator (1912), 256 Ill. 468, 100 N.E. 266; Greig v. City of Park Ridge (1964), 49 Ill.App.2d 237, 199 N.E.2d 609; Scarpaci v. City of Chicago (1946), 329 Ill.App. 434, 69 N.E.2d 100; Koch v. City of Chicago (1938), 297 Ill.App. 103, 17 N.E.2d 411; Caruso v. City of Chicago (1934), 278 Ill.App. 247.

An overwhelming majority of jurisdictions have found that municipalities may be liable to pedestrians who are injured because of unsafe or dangerous conditions within parkways. Birmingham Water Works Co. v. Walker (1942), 243 Ala. 149, 8 So.2d 827; Castro v. Sutter Creek Union High School District (1938), 25 Cal.App.2d 372, 77 P.2d 509; Chazen v. City of New Britain (1961), 148 Conn. 349, 170 A.2d 891; Broder v. District of Columbia (D.C.Mun.Ct.App.1962), 184 A.2d 741; City of Mitchell v. Stevenson (1964), 136 Ind.App. 340, 201 N.E.2d 58; Leonard v. Mel Foster Co. (1953), 244 Iowa 1319, 60 N.W.2d 532; Palefsky v. Mayor (1956), 94 Ga.App. 597, 95 S.E.2d 715; Dunn v. City of Emporia (1957), 181 Kan. 334, 311 P.2d 296; City of Elizabethtown v. Baker (Ky.1963), 373 S.W.2d 593; Haindel v. Sewerage & Water Board (La.App.1959), 115 So.2d 871; Pierce v. City of Baltimore (1959), 220 Md. 286, 151 A.2d 915; Brennan v. City of Cambridge (1955), 332 Mass. 613, 127 N.E.2d 181; Jablonski v. City of Bay City (1929), 248 Mich. 306, 226 N.W. 865; Brittain v. City of Minneapolis (1957), 250 Minn. 376, 84 N.W.2d 646; Birdsong v. City of Clarksdale (1941), 191 Miss. 532, 3 So.2d 827; Burgess v. Kansas City (Mo.App.1951), 242 S.W.2d 591; Harms v. City of Beatrice (1942), 142 Neb. 219, 5 N.W.2d 287; Knoechel v. Inzirillo (City Ct.1940), 16 N.Y.S.2d 680; Gettys v....

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