Thompson v. Cook County Forest Preserve Dist., s. 1-91-0251
| Decision Date | 19 June 1992 |
| Docket Number | Nos. 1-91-0251,91-0320,s. 1-91-0251 |
| Citation | 595 N.E.2d 1254,231 Ill.App.3d 88 |
| Parties | , 172 Ill.Dec. 584 Marianne THOMPSON, mother and next friend of James Thompson, a minor, Plaintiff-Appellee, v. COOK COUNTY FOREST PRESERVE DISTRICT, Defendant-Appellant-Separate Appellee (Marianne Thompson, Individually, Plaintiff-Separate Appellant; Thomas Allie, Defendant). |
| Court | United States Appellate Court of Illinois |
Robert P. Sheridan, Chicago, for Cook County Forest Preserve dist.
Michael J. McArdle, Chartered, Chicago, for plaintiff-appellee Marianne Thompson.
These consolidated appeals arise from a negligence action filed in the circuit court of Cook County by plaintiff, Marianne Thompson, in her capacity as mother and next friend of her minor son James. Seven-year-old James was injured when struck by a car on June 12, 1983, at a forest preserve owned by defendant, the Cook County Forest Preserve District ("the Forest Preserve"). Defendant Thomas Allie, the driver of the automobile, is not involved in this appeal.
Count I of plaintiff's third amended complaint against the Forest Preserve alleged negligent failure to design the facility and to give adequate warnings; Count II against the Forest Preserve made the same essential allegations characterizing it as willfully and wantonly negligent; Count III against Allie alleged the negligent operation of his vehicle. The trial court denied the Forest Preserve's motion to dismiss plaintiff's third amended complaint. In July 1990, at the start of trial, the trial judge granted plaintiff's motion to file an additional count on her own behalf seeking damages for medical expenses under the Expenses of Family Statute. (Ill.Rev.Stat.1983, ch. 40, par. 1015.) After a trial, the jury returned a verdict against both defendants for $960,000 reduced by 25% for contributory negligence, bringing the final amount to $675,000 for James and $45,000 to plaintiff individually under the family expense statute. The trial court subsequently granted the Forest Preserve's motion for judgment notwithstanding the verdict on the family expense count, but denied all other relief requested by the Forest Preserve, and entered judgment for plaintiff in the amount of $675,000.
On appeal, the Forest Preserve argues that it owed plaintiff no duty under these facts, nor was any failure on its part shown to be a probable cause of James's injury. Plaintiff's appeal challenges the trial court's order granting judgment notwithstanding the verdict to the Forest Preserve on the family expense statute.
The pertinent evidence adduced at trial is summarized below: The recreational area where the accident occurred served as a parking area and a roadway with two-way traffic; the rest rooms and the water pump were located on opposite sides of the parking area and roadway, but were not adjacent to one another; picnic tables were spread throughout the area. The accident occurred about five feet from the pump. At the time of the accident, there were no painted stripes indicating parking spaces. A 15 mile-per-hour speed limit sign was posted. The parties dispute whether the facility was a roadway or a parking lot.
James Thompson testified that he went to the forest preserve on the day of the accident with his friend, Brett Huntington, and Brett's father. He did not recall the accident itself, but remembered only being rushed to the hospital.
Nick Huntington testified for plaintiff that he took James, with his mother's permission, to the forest preserve with his seven-year-old son, Brett, and his three-year-old daughter, Jaime. He parked in the vicinity of a water pump and brought sandwiches to the adjacent picnic area. The rest rooms were across the roadway. He told the children to hold hands when they went to the rest room, and he watched them cross as he stood several feet from the curb where he played horseshoes. He saw the children return from the bathroom and approach the roadway. He heard an engine revving, and although the other children paused, James crossed the street. Huntington testified that he believed James "thought he could beat the truck."
Allie testified as an adverse witness that at about 5:45 p.m. on the day of the incident he drove his "Toyota 4x4 truck" at 17 miles per hour through the parking area looking for someone that he knew. He saw the sign, which indicated a 15 mile per hour limit. He knew that there were toilet facilities, but did not see anyone crossing in front of him. Allie did not see James before he struck him; he saw the left side of James's face strike the right front fender of his truck above the wheel wall.
Plaintiff presented the expert testimony of Ronald Ruhl, a consulting engineer and professor of engineering at the University of Illinois. He reviewed documents regarding the accident and the facility's design, and visited the facility. He described the facility as a parking lot and roadway, and stated that the design presented hazards to pedestrians and vehicles. He testified that the facility needed a six-foot wide pedestrian crossing, and pedestrian crossing signs. He stated that the recreation area failed to demarcate a safe area to cross, and that patrons crossed anywhere.
Lloyd Sonenthal, a consulting engineer, testified for the Forest Preserve and characterized the area as an "off-street parking facility." In his opinion, crosswalks were unnecessary because pedestrians came from nonspecific points. He stated that crosswalks are intended to funnel large groups of pedestrians from one clearly defined point to another. He believed that the signage was adequate, and that crosswalks would not have prevented the accident. He agreed that if the roadway was a street, a pedestrian crosswalk should have been provided.
The Forest Preserve contends that it owed no duty to plaintiff under these facts. To properly state a negligence cause of action, plaintiff must establish that defendant owed a duty of care, a breach of that duty, and an injury proximately caused by the breach. (Marshall v. City of Centralia (1991), 143 Ill.2d 1, 155 Ill.Dec. 802, 570 N.E.2d 315.) Whether defendant owed plaintiff a duty of care is a question of law to be determined by the court. (McLane v. Russell (1989), 131 Ill.2d 509, 137 Ill.Dec. 554, 546 N.E.2d 499.) Whether a legal duty exists requires consideration of foreseeability of possibility of harm, the burden of guarding against the injury and the consequence of placing that burden on the defendant. (Ziemba v. Mierzwa (1991), 142 Ill.2d 42, 153 Ill.Dec. 259, 566 N.E.2d 1365.) Absent a legal duty, plaintiff cannot recover in negligence as a matter of law. Beal v. Kuptchian (1987), 164 Ill.App.3d 191, 115 Ill.Dec. 301, 517 N.E.2d 712.
In plaintiff's third amended complaint and before this court, plaintiff claims that the Forest Preserve owed plaintiff a duty under section 3-104(b) of the Local Government and Governmental Employees Tort Immunity Act. (Ill.Rev.Stat.1983, ch. 85, par. 3-104(b).) Count I of plaintiff's third amended complaint alleged that defendant breached this duty by:
(a) Design[ing] a roadway without markings for traffic flow, where such markings were necessary to warn of this condition which endangered the safe movement of traffic, and which was not resonably [sic] apparent to a person in exercise of due care;
(b) Design[ing] and operat[ing] a parking area through which a roadway was maintained without pedestrian crosswalks, * * *;
(c) Operat[ing] a public roadway without speed limit designation, * * *;
(d) Fail[ing] to provide pedestrian crosswalks in the area of its toilet facilities when it knew, or should have known, that members of the general public would cross the roadway to use such toilet facilities, * * *;
(e) Fail[ing] to install a warning sign of a dangerous condition which would warn operators of motor vehicles, * * * of the likelihood of pedestrians crossing the roadway at or near its toilet facilities, * * *;
(f) Fail[ing] to design, install or operate a device warning of a dangerous condition such as ripple strips or speed bumps, which would warn and remind motor vehicle operators of the presence of pedestrians, * * *;
(g) Fail[ing] to consult with experts in the field of parking lot and roadway design when it knew, or should have known, expert assistance was necessary in the design, construction and maintenance of public roadways and parking areas.
Plaintiff alleged that James was injured as a proximate result of one or more of the above breaches by defendant. For the herein stated reasons, we reject plaintiff's reliance on section 3-104(b) and conclude that defendant owed plaintiff no duty to provide crosswalks or warnings under the Act or the common law.
The purpose of the Tort Immunity Act is to "protect local entities and public employees from liability arising from the operation of government." (Ill.Rev.Stat.1989, ch. 85, par. 1-101.1(a).) The Act adds no new duties to those which existed prior to its codification (Charpentier v. Chicago (1986), 150 Ill.App.3d 988, 104 Ill.Dec. 122, 502 N.E.2d 385), but rather continues common law duties respecting the liability of a municipality in the maintenance of its public ways. (Warchol v. Chicago (1979), 75 Ill.App.3d 289, 30 Ill.Dec. 689, 393 N.E.2d 725.) Section 3-102(a) "articulates the common law duty to which the subsequently delineated immunities apply." (Horrell v. Chicago (1986), 145 Ill.App.3d 428, 435, 99 Ill.Dec. 524, 529, 495 N.E.2d 1259, 1264.) Section 3-102(a) provides as follows:
"(a) 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...
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