Polak v. Person

• Decision Date: 28 July 1992
• Docket Number: No. 1-91-0717,1-91-0717
• Citation: 597 N.E.2d 810,173 Ill.Dec. 836,232 Ill.App.3d 505
• Parties: , 173 Ill.Dec. 836 Joseph POLAK and Dorothy Polak, Plaintiffs-Appellants, v. Roland PERSON, Defendant, and Chicago Park District, a municipal corporation, Helmut Jahn, C.F. Murphy, Murphy/Jahn, Inc., and Skidmore, Owings & Merrill, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 810

597 N.E.2d 810

232 Ill.App.3d 505, 173 Ill.Dec. 836

Joseph POLAK and Dorothy Polak, Plaintiffs-Appellants, v. Roland PERSON, Defendant and Chicago Park District, a municipal corporation, Helmut Jahn C.F. Murphy, Murphy/Jahn, Inc., and Skidmore Owings & Merrill, Defendants-Appellees.

No. 1-91-0717.

Appellate Court of Illinois First District, Second Division.

July 28, 1992.

Sandman, Levy and Petrich, Chicago (Robert R. Dlugajczyk, of counsel), for plaintiffs-appellants.

Gessler, Flynn, Fleischmann, Hughes & Socol, Ltd., Chicago (Terence E. Flynn, William P. Jones, Kimberley Marsh, of counsel), for defendant-appellee Chicago Park Dist.

Kirkland & Ellis, Chicago (Jeffrey S. Powell, of counsel), for defendant-appellee Skidmore, Owings & Merrill.

Schiff, Hardin & Waite, Chicago (Paul M. Lurie, Joseph J. Krasovec, III., Edward J. Wong, III., of counsel), for defendants-appellees Helmut Jahn, C.F. Murphy and Murphy Jahn, Inc.

Justice SCARIANO delivered the opinion of the court:

Joseph and Dorothy Polak (plaintiffs) appeal the trial court's October 23, 1990 order granting summary judgment in favor of Skidmore, Owings and Merrill (Skidmore), and Helmut Jahn, C.F. Murphy and Murphy/Jahn, Inc. (collectively, Murphy/Jahn), and its January 20, 1991 order granting summary judgment in favor of the Chicago Park District (District). Plaintiffs also appeal the trial court's February 26, 1991 denial of its motion to reconsider and clarify these orders.

In 1975, the architectural firms of Skidmore, Owings & Merrill, Murphy/Jahn, Inc., and Loebl, Scholssman, Dart and Hackl (Loebl) entered into a joint venture agreement after they were retained by the City of Chicago to design signs for Soldier Field as part of the Bicentennial Improvement Project. During the course of the project, they specified both the design and placement of the "Park Lot D" sign, which was constructed of steel and supported by two posts, each of which was embedded in a three-inch concrete base. The sign was located near the south-bound lanes in the area of 1600 S. Lake Shore Drive, along a grassy area on the west shoulder of the road, lined with light poles and mature trees. ¹

On July 21, 1984, plaintiffs were traveling south-bound on the straight stretch of Lake Shore Drive, in the vicinity of "Park Lot D," when Roland Person (Person), who was drag "racing with a late model Camaro" at a "high rate of speed," rammed the back of their vehicle while he was attempting to change lanes. The impact of the collision with Person's car caused plaintiff Joseph Polak to lose control of his vehicle, which swerved across two lanes of traffic, left the traveled portion of the roadway, went over a concrete barrier, into the grassy area, and collided with one of the "Park Lot D" sign's steel posts, which did not yield upon impact. Both plaintiffs were knocked unconscious by the impact of the collision with Person's car and neither recalled the secondary collision with the sign. As a result of these collisions, plaintiffs sustained serious personal injuries and extensive property damage to their vehicle. Person was later charged with making an unsafe lane change.

On October 4, 1984, plaintiffs filed a four-count complaint against Person, first amending it on January 13, 1986, to add the District as a defendant, alleging negligence in the placement of the sign. On July 21, 1986, plaintiffs filed a second amended complaint, adding Skidmore and Murphy/Jahn, alleging negligence in the placement and design of the sign. Thereafter, on January 22, 1988, plaintiffs amended their complaint to include two counts sounding in negligence against Loebl, but these counts were later dismissed for failing to meet the requirements of the statute of limitations. The gravamen of plaintiffs' complaint is their contention that the sign should have been made with "break-away" posts and that the posts' concrete bases should have been smaller; had the sign been so designed, plaintiffs allege, they would have suffered little or no injuries attributable to their colliding with it.

On July 6, 1990, Skidmore filed a motion for summary judgment, asserting that it owed no duty to plaintiffs and that its conduct was not a proximate cause of their injuries. On July 20, 1990, later amended on August 27, 1990, Murphy/Jahn filed a motion for partial summary judgment, contending that the sign met the certain applicable design requirements and was therefore not too close to the roadway, that the concrete bases also met the design requirements, and that these bases did not, in fact, cause plaintiff's injuries. Thereafter, Skidmore was given leave to adopt Murphy/Jahn's motion as well. On October 10, 1990, the District filed a motion for summary judgment, making the same arguments as Skidmore and Murphy/Jahn. After hearing arguments of counsel on Skidmore's and Murphy/Jahn's motions, the trial court, on October 23, 1990, entered an order granting summary judgment in favor of both. On November 16, 1990, plaintiffs filed a motion for reconsideration and clarification, requesting the court to reverse its prior ruling, or alternatively, that it articulate its rationale in refusing to find the existence of a legal duty, pointing out that it had stated at the hearing:

"It seems to me that the manner in which somebody uses the roadway, coming around the road at Soldier Field, is really not relevant to hitting the sign, because somebody can just skid on ice or skid on water and do the same thing that happened. I feel that within the realm of allowable foreseeability, that this could be foreseeable.

* * * * * *

"Coming down Lake Shore Drive and jockeying for position in heavy traffic and going off the roadway, that's foreseeable.

* * * * * *

"I already said that I think on the foreseeability issue I'm not going to go any further because I think there is foreseeability. The only thing I'm going to take under advisement is the duty because I want to read the cases."

On January 20, 1991, the trial court heard the District's motion for summary judgment, and, based on its prior ruling of October 23, 1990, it granted the motion. On January 30, 1991, plaintiffs filed a motion, later consolidated with the November 16, 1990, motion, for reconsideration and clarification of the January 20, 1991, order. On February 26, 1991, the trial court denied plaintiffs' motions, finding that the October 23, 1990, order in favor of Skidmore and Murphy/Jahn was final, ² and that there was no just reason to delay enforcement or appeal of the order, pursuant to Supreme Court Rule 304(a). On February 28, 1991, plaintiffs filed their notice of appeal.

I

Since the parties are of two different thoughts on the subject, we address first the issue of what is the correct standard of review in the appeal of a motion for summary judgment. Two of the defendants, the District and Skidmore, claim that the proper standard is abuse of discretion, but this is emphatically not the case despite the fact that there are several appellate court cases holding to the contrary. (Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill.App.3d 1, 86 Ill.Dec. 335, 475 N.E.2d 549; Kemp v. Sisters of Third Order of St. Francis (1986), 143 Ill.App.3d 360, 97 Ill.Dec. 709, 493 N.E.2d 372; Alop v. Edgewood Valley Community Association (1987), 154 Ill.App.3d 482, 107 Ill.Dec. 355, 507 N.E.2d 19; Lindenmeir v. City of Rockford (1987), 156 Ill.App.3d 76, 108 Ill.Dec. 624, 508 N.E.2d 1201.) Rather,

"[t]he sole function of a reviewing court in reviewing the trial court's entry of a summary judgment is to determine whether the trial court correctly ruled that no genuine issue of material fact had been raised. If no such issue remained, then [the reviewing court] must determine whether judgment was correctly entered for the moving party as a matter of law."

(Coomer v. Chicago & North Western Transp. Co. (1980), 91 Ill.App.3d 17, 21, 46 Ill.Dec. 812, 414 N.E.2d 865 (emphasis added); see also Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill.2d 263, 272, 166 Ill.Dec. 882, 586 N.E.2d 1211; Derby Meadows Utility Co. v. Inter- Continental Real Estate (1990), 202 Ill.App.3d 345, 354, 147 Ill.Dec. 646, 559 N.E.2d 986; Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) Neither the finding of an absence of a genuine issue of material fact nor the application of the correct rule of law to facts as to which there is no dispute can be said to require the exercise of discretion in any sense of the term.

II

Regarding the merits of the appeal, the District asserts that the trial court was correct in holding that it did not owe plaintiffs a duty of ordinary care regarding either the design or placement of the sign. (Gouge v. Central Illinois Public Service Co. (1991), 144 Ill.2d 535, 163 Ill.Dec. 842, 582 N.E.2d 108; Boylan v. Martindale (1982), 103 Ill.App.3d 335, 59 Ill.Dec. 43, 431 N.E.2d 62; Hoffman v. Vernon Township (1981), 97 Ill.App.3d 721, 53 Ill.Dec. 135, 423 N.E.2d 519.) Plaintiffs argue that the trial court erred in failing to find the existence of a legal duty after it had stated that it was foreseeable that "somebody can just skid on ice or skid on water and do the same thing that happened. I feel that within the realm of allowable foreseeability, that this could be foreseeable. * * * I think there is foreseeability."

In order to state a cause of action for negligence, plaintiffs must allege that the defendant owes them a legal duty, that the defendant has breached this duty, and that the defendant's breach of this duty was the proximate cause of their injuries. (Gouge, 144 Ill.2d at 542, 163 Ill.Dec. 842, 582 N.E.2d 108.)

"Whether a duty exists is a question of law to be determined by the court, and depends on whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. * * * [T]he court will...