Mason v. City of Chicago

• Decision Date: 27 July 1988
• Docket Number: No. 88-251,88-251
• Citation: 527 N.E.2d 572,173 Ill.App.3d 330
• Parties: , 123 Ill.Dec. 109 Eva MASON, Plaintiff-Appellant, v. CITY OF CHICAGO, and Gallagher Asphalt, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 572

527 N.E.2d 572

173 Ill.App.3d 330, 123 Ill.Dec. 109

Eva MASON, Plaintiff-Appellant, v. CITY OF CHICAGO, and Gallagher Asphalt, Defendant-Appellee.

No. 88-251.

Appellate Court of Illinois First District, Third Division.

July 27, 1988.

Harold N. Pope, Ltd., Chicago, for plaintiff-appellant.

Watson & Sims, Chicago, for defendant-appellee.

Justice McNAMARA delivered the opinion of the court:

Plaintiff Eva Mason appeals from a summary judgment entered in favor of defendant, the City of Chicago, in this negligence action. Plaintiff contends that the trial court erred in finding that the City owed no duty of care to her. The action against a codefendant, Gallagher Asphalt, is still pending in the trial court.

On October 8, 1983, plaintiff walked across a residential street mid-block in order to reach her car, which was parked directly across the street. After taking several steps, plaintiff stepped into a hole and broke her leg. The hole was several feet long and several inches deep. No barriers or warnings were present. On the next block, the street was under construction. Equipment, rubber cones and barricades were present on the next block.

Plaintiff contends that the trial court erred in granting summary judgment because the City owes a duty to plaintiff notwithstanding her status as a jaywalker. Whether or not a defendant owes a duty to a plaintiff is a question of law properly addressed by the court in a motion for summary judgment. (Horrell v. City of Chicago (1986), 145 Ill.App.3d 428, 99 Ill.Dec. 524, 495 N.E.2d 1259.) Absent a legal duty, a plaintiff cannot recover in negligence as a matter of law, and summary judgment in favor of defendant is proper. Keller v. Mols (1984), 129 Ill.App.3d 208, 84 Ill.Dec. 411, 472 N.E.2d 161.

In Risner v. City of Chicago (1986), 150 Ill.App.3d 827, 104 Ill.Dec. 94, 502 N.E.2d 357, a holding which is dispositive of the issue before us, this court held that the City owes no duty to warn pedestrians not using the crosswalk of any hazards outside of the crosswalk. The law imposes no general duty on municipalities for the safeguarding of pedestrians when they are using the public streets as walkways. (Deren v. City of Carbondale (1973), 13 Ill.App.3d 473, 300 N.E.2d 590.) To demand such a duty would overextend a municipality's function. (Deren v. City of Carbondale.) The law is well-settled, therefore, that a municipality owes no duty to a pedestrian crossing a public street outside of the crosswalk. Risner v. City of Chicago, citing Horrell v. City of Chicago; American State Bank v. Cude (1975), 30 Ill.App.3d 206, 331 N.E.2d 825; Deren v. City of Carbondale.

Plaintiff argues that her status as a jaywalker is not determinative...