Ramirez v. City of Chicago

• Decision Date: 05 April 1991
• Docket Number: No. 1-90-2347,1-90-2347
• Citation: 156 Ill.Dec. 842,212 Ill.App.3d 751,571 N.E.2d 822
• Parties: , 156 Ill.Dec. 842 Juanita RAMIREZ, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 822

571 N.E.2d 822

212 Ill.App.3d 751, 156 Ill.Dec. 842

Juanita RAMIREZ, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellee.

No. 1-90-2347.

Appellate Court of Illinois First District, Sixth Division.

April 5, 1991.

Burke & Burke, Ltd., (John M. Burke, Thomas M. Lake, of counsel), Chicago, for plaintiff-appellant.

Corp. Counsel, City of Chicago, (Lawrence Rosenthal, Brian Trubitt, Kelly R. Welsh, of counsel), Chicago, for defendant-appellee.

Presiding Justice RAKOWSKI delivered the opinion of the court:

Plaintiff-appellant Juanita Ramirez filed this negligence action against defendant-appellant the City of Chicago (City) to recover damages plaintiff incurred while stepping onto a street. The trial court held that pursuant to section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1987, ch. 85, par. 3-102(a)) ("Tort Immunity Act") the City owed plaintiff no duty, and thus the trial court granted the City's motion for summary judgment. Plaintiff appeals the entry of summary judgment in favor of the City, contending that she was in fact the beneficiary of a duty of ordinary care. We affirm.

The facts of this case are relatively simple and are not in dispute. On June 4, 1988, plaintiff was injured while sweeping the curb portion of the street which was located in front of plaintiff's residence at 4828 South Paulina in Chicago. Specifically, plaintiff was sweeping debris which had collected in a sewer area. Plaintiff was cleaning the street in order to make it "look nice". When stepping from the curb to the street, plaintiff fell over a three inch ridge in the street. Plaintiff's injury occurred in an area of the street which was outside of a crosswalk.

In a cause of action based on negligence, the plaintiff must establish the existence of a duty, a breach of that duty and an injury proximately resulting from a breach of that duty. (Pelheim v. Griesheimer (1982), 92 Ill.2d 13, 18, 64 Ill.Dec. 544, 440 N.E.2d 96.) The question of the existence of a duty is a question of law. (Curtis v. County of Cook (1983), 98 Ill.2d 158, 163, 74 Ill.Dec. 614, 456 N.E.2d 116.) A motion for summary judgment, as defendant presented in this case, properly addresses the issue of duty. Horrell v. City of Chicago (1986), 145 Ill.App.3d 428, 431, 99 Ill.Dec. 524, 495 N.E.2d 1259.

Section 3-102(a) of the Tort Immunity Act sets forth a municipality's general property-related duty:

"[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[.]"

A municipality has a duty to reasonably maintain its streets for vehicular traffic (Ross v. City of Chicago (1988), 168 Ill.App.3d 83, 118 Ill.Dec. 760, 522 N.E.2d 215) and to reasonably maintain its crosswalks for pedestrians (see Mason v. City of Chicago (1988), 173 Ill.App.3d 330, 123 Ill.Dec. 109, 527 N.E.2d 572; Risner v. City of Chicago (1986), 150 Ill.App.3d 827, 104 Ill.Dec. 94, 502 N.E.2d 357). In Mason, the court observed:

"The law imposes no general duty on municipalities for the safeguarding of pedestrians when they are using public streets as walkways * * * The law is well settled, therefore, that a municipality owes no duty to a pedestrian crossing a public street outside of a crosswalk." (Mason, 173 Ill.App.3d at 332, 123 Ill.Dec. 109, 527 N.E.2d 572.)

In Risner, the court stated: "[T]he street is for use by vehicular traffic--not pedestrians, except where defendant has provided crosswalks or the like." Risner, 150 Ill.App.3d at 831, 104 Ill.Dec. 94, 502 N.E.2d 357.

The Illinois Appellate courts have addressed the issue of whether a municipality owes a pedestrian a duty of care in the maintenance of roadways in an increasing number of cases. (See Deren v. City of Carbondale (1973), 13 Ill.App.3d 473, 300 N.E.2d 590; Risner, 150 Ill.App.3d 827, 104 Ill.Dec. 94, 502 N.E.2d 357; Di Domenico v. Village of Romeoville (1988), 171 Ill.App.3d 293, 121 Ill.Dec. 436, 525 N.E.2d 242; Mason, 173 Ill.App.3d 330, 123 Ill.Dec. 109, 527 N.E.2d 572; Vlahos v. City of Chicago (1990), 198 Ill.App.3d 911, 145 Ill.Dec. 42, 556 N.E.2d 660; Vance v. City of Chicago (1990), 199 Ill.App.3d 652, 145 Ill.Dec. 724, 557 N.E.2d 494; Princivalli v. City of Chicago (1990), 202 Ill.App.3d 525, 147 Ill.Dec. 850, 559 N.E.2d 1190.) In fact, two more decisions involving the issue before this court have been released since the parties briefed the case at bar. See Wojdyla v. City of Park Ridge (1991), 209 Ill.App.3d 290, 154 Ill.Dec. 144, 568 N.E.2d 144; Greene v. City of Chicago (1991), 209 Ill.App.3d 311, 153 Ill.Dec. 899, 567 N.E.2d 1357.

Plaintiff argues that she was the beneficiary of a duty at the time of her injury because, though her injury occurred at a point in the street not protected by a crosswalk, she was lawfully on the street performing a lawful duty, and a defect in the street injured her while she was performing a socially desirable function. In support of this argument plaintiff cites a number of cases which are clearly distinguishable from the case at bar.

First, plaintiff relies on the Di Domenico case. There, the Third District Appellate court held that the municipality owed the pedestrian-plaintiff a duty of care, despite the fact that the injury occurred in an area of the street not protected by a crosswalk. In Di Domenico, the plaintiff fell into a hole on the street while approaching the trunk of his legally, curb-side parked automobile. Responding to the argument that streets (crosswalks excepted) need be maintained only for vehicular use, the court stated:

"It defies common sense to conclude that such local entities did not contemplate and intend that the operator of the vehicle along with the passengers would use the street area around the parked vehicle for ingress and egress to and from their parked vehicle." (Di Domenico, 171 Ill.App.3d at 295, 121 Ill.Dec. 436, 525 N.E.2d 242.)

The Di Domenico court concluded that the plaintiff, legally parked, could maintain a cause of action. In explaining the Di Domenico holding, the Vance court stated "[the Di Domenico court] found that the village must have recognized a driver would have to walk in the street from his legally parked car to the sidewalk", and therefore the plaintiff benefitted from a duty. Vance, 199 Ill.App.3d at 654, 145 Ill.Dec. 724, 557 N.E.2d 494. We note that the plaintiff in Vance was injured in the area of the street within which a CTA bus was allowed to park (per ordinance) as she approached the bus. Clearly, such use of the street, like that in the instant case, was lawful. The Vance court, however, declined to impose a duty on the city.

Di Domenico is distinguishable from the case at bar. Assuming plaintiff here was injured in an area of the street where parking was allowed, (the parties have not brought this factual matter to our attention and the record does not reveal whether parking was allowed where the injury occurred), the Di Domenico plaintiff was necessarily walking to her legally parked vehicle. Here, plaintiff was gratuitously cleaning the street.

Plaintiff also relies on the case of Marshall v. City of Centralia (1989), 193 Ill.App.3d 334, 140 Ill.Dec. 1, 549 N.E.2d 652. There the plaintiff was injured when he stepped into an open manhole. The location of the manhole was on the parkway--"[a]t the time of the accident the plaintiff had not yet entered the street". (Marshall, 193 Ill.App.3d at 336, 140 Ill.Dec. 1, 549 N.E.2d 652.) The court held that the plaintiff was indeed the beneficiary of a duty, but the duty ran because a municipality has a duty to maintain its parkways in a reasonably safe condition considering the use of that property. (Marshall, 193 Ill.App.3d at 338-39, 140 Ill.Dec. 1, 549 N.E.2d 652.) The injury in the case at bar is not one that involves the use of a parkway, and thus Marshall is not persuasive to the issue before us.

Finally, plaintiff relies on Princivalli. There, the court reversed an entry of summary judgment entered in favor of the city where the entry of judgment was "premature", given the city's failure to establish that the pedestrian was not an intended and permitted user of the street. (Princivalli, 202 Ill.App.3d at 528, 147 Ill.Dec. 850, 559 N.E.2d 1190.) In Princivalli, the plaintiff legally parked her vehicle parallel to the curb, "alighted from the car, * * * walked around the back end of the car and stepped into the street. As she was crossing the street, she accidentally stepped into a pothole." (202 Ill.App.3d at 526, 147 Ill.Dec. 850, 559 N.E.2d 1190.) While one may argue that Princivalli is an extension of Di Domenico, (an argument we need not address), it is nonetheless distinguishable from the case at bar because the plaintiff there was walking from a legally parked vehicle.

Plaintiff argues that this case, like the Princivalli case, must be remanded for a determination of whether her use of the street was "foreseeable". Here, plaintiff's argument clearly puts the proverbial cart before the horse. The fact that plaintiff's use of the street may have been foreseeable does not compel a conclusion that a duty was owed plaintiff. Pursuant to the language of the Tort Immunity Act, foreseeability "pertains to use of the municipality's property by permitted and intended users, not to foreseeable user's ... 'in a manner ... it was reasonably foreseeable it would be used ' ". (Risner, 150 Ill.App.3d at 831, 104 Ill.Dec. 94, 502 N.E.2d 357.) (emphasis in original) While it is foreseeable that pedestrians will use the streets outside of crosswalks in a variety of manners, the pivotal inquiry is whether the municipality intends and permits pedestrians to use the property. We note that it is unlikely...