Predny v. Village of Park Forest

• Decision Date: 04 December 1987
• Docket Number: Nos. 85-2952,86-0797,s. 85-2952
• Citation: 518 N.E.2d 1243,116 Ill.Dec. 263,164 Ill.App.3d 688
• Parties: , 116 Ill.Dec. 263 Christopher PREDNY, a minor, by his father and next friend, Robert Predny, Plaintiff-Appellant, v. VILLAGE OF PARK FOREST, Defendant and Counterdefendant-Appellee (Louis Sherman and ITT Continental Baking Company, Counterplaintiffs-Appellants; U.S. Properties; Orchard Plaza Associates, an Illinois Limited Partnership, and Glen Kerslake, Counterdefendants). Christopher PREDNY, a minor, by his father and next friend, Robert Predny, Plaintiff-Appellee, v. VILLAGE OF PARK FOREST, Illinois, Defendant and Counterdefendant-Appellant (U.S. Properties, et al., Defendants; Louis Sherman and ITT Continental Baking Co., Counterplaintiffs-Appellees; U.S. Properties, et al., Counterdefendants).
• Court: United States Appellate Court of Illinois

Page 1243

518 N.E.2d 1243

164 Ill.App.3d 688, 116 Ill.Dec. 263

Christopher PREDNY, a minor, by his father and next friend, Robert Predny, Plaintiff-Appellant, v. VILLAGE OF PARK FOREST, Defendant and Counterdefendant-Appellee (Louis Sherman and ITT Continental

Baking Company, Counterplaintiffs-Appellants; U.S.

Properties; Orchard Plaza Associates, an Illinois Limited

Partnership, and Glen Kerslake, Counterdefendants).

Christopher PREDNY, a minor, by his father and next friend, Robert Predny, Plaintiff-Appellee, v. VILLAGE OF PARK FOREST, Illinois, Defendant and Counterdefendant-Appellant (U.S. Properties, et al.,

Defendants; Louis Sherman and ITT Continental Baking Co.,

Counterplaintiffs-Appellees; U.S. Properties, et al.,

Counterdefendants).

Nos. 85-2952, 86-0797.

Appellate Court of Illinois First District, Fifth Division.

Dec. 4, 1987.

As Modified on Denial of Rehearing Jan. 22, 1988.

John M. Burke, Molly C. Mason, of counsel, Burke & Burke, Ltd., Chicago, for plaintiff-appellant, Christopher Predny.

Francis D. Morrissey, Thomas F. Tobin, Thomas R. Nelson, John C. Filosa, Donald J. Hayden, of counsel, Baker & McKenzie, Chicago, for defendants-counterplaintiffs-appellants, ITT Continental Baking Co. & Louis Sherman.

David Lincoln Ader, of counsel, Ancel, Glink, Giamond, Murphy & Cope, P.C., Chicago, for defendant, counterdefendant-appellant, Village of Park Forest.

Justice MURRAY delivered the modified opinion of the court upon denial of a petition for rehearing:

This is a consolidated appeal by some of the parties from orders of two trial courts in a negligence action. The action arose out of an August 19, 1981, occurrence, when eleven-year-old Christopher Predny (plaintiff) was severely and permanently injured while riding his bicycle down a concrete path leading into a service driveway of a shopping center located in Park Forest, Illinois. The intersection of the bicycle path and service driveway was lined with a row of lilac bushes which prevented a clear view of the intersection. A delivery truck, owned by ITT Continental Baking Company (ITT) and driven by Louis Sherman (defendants-counterplaintiffs), struck the boy's bicycle as it entered the service driveway. Plaintiff is now a quadriplegic. Plaintiff brought a negligence action against ITT and Sherman, and also against the shopping center owners and the village of Park Forest (village) for negligence to maintain, control, and to obviate the unnecessarily dangerous condition of the area surrounding the intersection and to fail to warn bicyclists and motorists of the dangerous condition.

ITT/Sherman filed a counterclaim against the village and shopping center owners for contribution. Thereafter, the village filed a summary judgment motion which the trial court granted on September 21, 1983. In its motion, the village asserted that it owed no duty to plaintiff because the accident occurred on private property and submitted a plat survey of the area that was made two years after the accident and subsequent to a cutting back of the bushes by the village police chief, acting on his own initiative after plaintiff's accident. The village also documentated that the intersection and the bicycle path for a distance of 10 feet therefrom were privately owned and that the lilac bushes were planted on private property and had not been planted by the village.

In opposition to the summary judgment motion, plaintiff submitted a survey plat prepared before the accident which showed that the village owned much of the land immediately adjacent to the intersection including a drainage ditch and the majority of the bicycle path. Both plats indicated that the village owns property up to approximately 7 1/2 feet from the curb of the driveway. Plaintiff asserts that this is significant because the police officer investigating the accident measured the width of the bushes and found them to extend 11.4 feet west of the curb, thus placing 3.9 feet of bushes over land owned by the village. Plaintiff also submitted evidence that the village was the first wholly designed and planned village in Illinois and that the village had required the shopping center developer to plant the bushes in order to provide a screen between the center and nearby homes.

Plaintiff also demonstrated that the village required placement of the bicycle path next to the bushes and that village employees often inspected and/or maintained the area surrounding the drainage ditch. The assistant superintendent for the village testified that when he had worked as a maintenance man, he reported the bush obstruction and at least once, trimmed the bushes upon his supervisor's order. Subsequently, he again reported the obstruction but was told that the bushes were not on village property. He further stated that he had installed the ramp connecting the path and service driveway for the village. Another employee, who was the village planner between 1969 and 1982, stated in his deposition that village employees had been instructed to give notice of sight obstructions and that he realized the bushes obstructed the view when he used the bicycle path but he never notified anyone.

The village police chief stated that he examined the area after plaintiff's accident and determined that an adult person could not see traffic until after stepping into the driveway. His investigation showed that there had been two accidents prior to plaintiff's at that location--both of which involved bicyclists being struck by motorists on the service driveway. Both accident reports indicated the presence of heavy bushes and one report mentioned obstruction of the path by the bushes. The police officers investigating the prior accidents testified that the bushes were an obstruction but that neither officer reported that fact to superiors.

After hearing oral arguments, on December 21, 1983, the trial court granted summary judgment for the village, dismissing it as a party defendant, after finding that as a matter of law the village owed no duty to plaintiff. This order was not made final and appealable. Afterwards, plaintiff timely moved to vacate the summary judgment and requested leave to file his third amended complaint. Both motions were denied on April 6, 1984. On April 16, the trial court granted the village's motion to dismiss ITT/Sherman's counterclaim for contribution against it and later denied counterclaimant's request to file an amended counterclaim. Neither order was made final and appealable. On a petition for reconsideration, pursuant to a section 2-1401 petition (Ill.Rev.Stat.1981, ch. 110, par. 2-1401), the court again denied plaintiff and ITT/Sherman their requested relief.

Subsequently, the owners and managers of the shopping center were dismissed as defendants after entering into a structured settlement with plaintiff. A jury trial was held in a court other than the court issuing the above orders. The only defendants remaining at trial time were ITT/Sherman. The jury rendered a verdict in plaintiff's favor and after deducting an amount for 37% comparative negligence, awarded him $3,743,910.40. Judgment was entered for that amount on September 3, 1985. On October 3, 1985, both plaintiff and ITT/Sherman filed notices of appeal of the prior interlocutory orders regarding the summary judgment proceedings.

On September 24, 1985, ITT/Sherman filed a motion requesting the first of several extensions of time in which to file a post-trial motion. This and subsequent requests were granted by the trial court. On January 16, 1986, plaintiff filed a motion and stipulation between himself and ITT/Sherman requesting vacation of the judgment, a new trial on all issues, and approval of a loan agreement between plaintiff and ITT/Sherman. On February 28, 1986, the trial court found that it had jurisdiction over the matter and specifically denied approval of the loan agreement since it was not a good faith settlement under the Illinois Contribution Among Joint Tortfeasors Act (Ill.Rev.Stat.1985, ch. 70, par. 301 et seq.) and, that the agreement was in fact a settlement. Based on the stipulation, the court also vacated the judgment entered on the jury verdict and dismissed the cause without prejudice. The village appealed from all parts of the February 28 order except the ruling as to the loan agreement/settlement and dismissal of its counterclaim. It also appealed from the orders extending the time granted to ITT/Sherman to file a post-trial motion. The various appeals from the two different court proceedings have been consolidated.

Setting out in full the various orders appealed from would merely confuse most readers. Plainly and simply, the critical underlying issue to these appeals is whether the village should be a party to the litigation because of the alleged existence of issues of fact that would have precluded the trial court from initially granting summary judgment for the village. However, before this court can address that issue, we must first determine our jurisdiction over any or all of the issues raised on appeal since the village questions the trial court's jurisdiction to enter the February 28, 1986, order.

The village contends that the trial court lacked jurisdiction to vacate the judgment and dismiss the cause without prejudice because plaintiff and ITT/Sherman had previously filed notices of appeal and because more than 30 days had elapsed from entry of judgment. It also objects to the earlier orders granting ITT/Sherman extended time to file a post-trial motion. The village further argues that the judgment should not have been vacated since the village had an interest in the judgment and was not a party to the stipulation seeking vacation of the judgment. In response, plaintiff and ITT/Sherman dispute the lack of jurisdiction and move to dismiss the village's appeal, asserting that it is premature.

This court affirms the February 28, 1986, order. The village initially charges that the trial...