Warchol v. City of Chicago

• Citation: 30 Ill.Dec. 689,75 Ill.App.3d 289,393 N.E.2d 725
• Decision Date: 08 August 1979
• Docket Number: No. 77-192,77-192
• Parties: , 30 Ill.Dec. 689 Denise WARCHOL, a minor by Frances Warchol, her mother and next friend, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, and Delores Ann Glista, Mary Ann Rodriguez and Edward Glista, Jr., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 725

393 N.E.2d 725

75 Ill.App.3d 289, 30 Ill.Dec. 689

Denise WARCHOL, a minor by Frances Warchol, her mother and next friend, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, and Delores Ann

Glista, Mary Ann Rodriguez and Edward Glista, Jr.,

Defendants-Appellees.

No. 77-192.

Appellate Court of Illinois, First District, Third Division.

Aug. 8, 1979.

John Panici, Chicago, for plaintiff-appellant.

William R. Quinlan, Daniel Pascale, Robert L. Thompson, Chicago, for defendants-appellees.

McGILLICUDDY, Justice:

The plaintiff, Denise Warchol, a minor, brought suit through her mother, Frances Warchol, to recover damages for personal injuries she allegedly suffered when she slipped while walking on an iron fence and fell against a tree. She named as defendants the City of Chicago, Delores Ann Glista, Mary Ann Rodriguez and Edward Glista, Jr. The Circuit Court of Cook County granted a motion to dismiss the complaint as to the City and granted the motion for summary judgment filed by the other defendants. The plaintiff appeals those orders.

In her amended complaint the plaintiff alleged that on July 14, 1972, the defendant, City of Chicago, possessed, maintained and controlled a portion of the sidewalk and parkway located at 4301 South Wolcott Street in Chicago. She further alleged that the individual defendants owned and controlled the property at this address, which was adjacent to the sidewalk and parkway. The plaintiff claimed that on that date she was playing in the vicinity of the parkway and was injured when she stumbled and fell to the ground. At the time the plaintiff was 15 years old and "was in the exercise of that degree of care required of a child of her age, intelligence, capacity, experience and understanding."

The plaintiff raised two counts against each defendant. Count I essentially presented a straight negligence action. In this count, the plaintiff alleged that the City was guilty of one or more of the following acts of negligence:

"(a) Maintained a tree and tree stump in such location, in such a condition, as to be dangerous to any individual or individuals using the way in question, of which condition this defendant had notice or in the exercise of reasonable care would have had notice;

(b) Negligently allowed the erection and maintenance of the iron fence in question at the aforesaid location;

(c) Negligently failed to prohibit the erection of such dangerous condition on or adjacent to a public way;

(d) Negligently failed to enforce the applicable ordinances of the Municipality and as contained in the Municipal Code of Chicago, when said defendant knew or in the exercise of reasonable care should have known that such violation would cause injury to others."

Also in count I the plaintiff alleged that the individual defendants were guilty of one or more of the following acts of negligence:

"(a) Maintained a tree and tree stump in such location, in such a condition, as to be dangerous to any individual or individuals using the way in question, of which condition these defendants had notice or in the exercise of reasonable care would have had notice;

(b) Negligently maintained the iron fence in question over a public way contrary to the applicable ordinances of the City of Chicago;

(c) Negligently placed or caused to be placed and maintained upon a public way an obstruction, in violation of certain ordinances of the City of Chicago;

(d) Negligently broke or otherwise changed the condition of a public way in violation of ordinances of the City of Chicago."

Count II was based upon an attractive nuisance theory. The plaintiff alleged that the iron fence, in conjunction with the tree and tree stump, created a condition which was "inherently attractive to children" and that the defendants "knew or in the exercise of ordinary care ought to have known" that this condition attracted children to play. She then alleged the defendants were guilty of one or more negligent actions which resulted in her injury. The negligent actions cited in count II were, in essence, the same as those cited in count I.

The City filed a motion to dismiss the action as to it. Appended to the motion were portions of the deposition of the plaintiff and photographs of the parkway area where the accident occurred. In her deposition, the plaintiff stated that she was walking on top of a fence made out of metal pipes or poles while a girlfriend held her arm. The pole on which she was walking was approximately two feet off the ground. Suddenly, her foot slipped and twisted around the pole, causing her to fall. She landed on the ground and struck her arm on a tree which was also located on the parkway. The plaintiff stated that part of the paint on the pole was rusted away; however, when asked what caused her to fall she stated that she guessed that she had just lost her balance. The photographs, submitted by the City, did not indicate that there was a tree stump on the parkway, but they showed that portions of the roots of the tree against which the plaintiff fell protruded above the ground.

The individual defendants moved for summary judgment. Attached to their motion was the affidavit of Rodriguez and Delores Ann Glista. In this affidavit, the affiants asserted that the property adjacent to the location where the accident occurred had been purchased by their father. They did not know who had installed the fence which was located on the City's property. They claimed that the only maintenance of the fence, which they or their parents had done, was to paint it.

The plaintiff filed an answer to the City's motion to dismiss and submitted portions of the depositions of herself, Rodriguez and Delores Ann Glista. In her answer, the plaintiff contended that the photographs submitted to the court by the City showing that the roots of the tree "stick up from the ground and appear sharp and dangerous" supported her allegation that there was a tree stump in the parkway. In the portion of her deposition she appended to her answer, she stated that following her fall she landed on her back with her head against the tree and her arm across the stump. Her legs were across the pole.

Glista, in her deposition, stated that in May 1973 she and the other owners of the property at 4301 South Wolcott had the fence removed. She did not know who had constructed the fence or who had planted the tree, but that she was 27-years-of-age and the fence had been there for her entire life. When asked if her father maintained the fence, she indicated that he would paint the fence when necessary. She also said that after her father died, she and the other members of her family also painted the fence.

Rodriguez, in her deposition, stated that on a "few" occasions prior to the date of the accident, she had seen children playing in the area of the fence. When she saw them, she chased them away. Glista also said that as a child she had walked on the fence.

We are presented with two questions on appeal: (1) whether the trial court properly granted the City's motion to dismiss and (2) whether the trial court properly granted the motion by the individual defendants for a summary judgment. We first consider the propriety of the City's dismissal.

Considering first the alleged acts of negligence of the City, we feel that under the facts alleged by the plaintiff, the City was under no duty to protect the plaintiff from the type of injury she sustained. A duty is an obligation imposed by the law which requires one to conform to a certain standard of conduct for the protection of another against an unreasonable risk. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 328 N.E.2d 538; Barnes v. Washington (1973), 56 Ill.2d 22, 305 N.E.2d 535.) Although the liability of a municipal corporation is currently governed by the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat., 1975, ch. 85, par. 1-101, et seq.), this act has essentially continued the common law duties with respect to the liability of a municipality in the maintenance of its public ways. (See Horton v. City of Ottawa (1976), 40 Ill.App.3d 544, 352 N.E.2d 23.) Under these common law principles, a municipality is not considered to be an insurer against all accidents occurring on the public way; rather, the municipality is required to maintain its streets and sidewalks in a reasonably safe condition for the amount and kind of travel which may be fairly expected upon them. (Bradshaw v. City of East St. Louis (1954), 3 Ill.App.2d 300, 122 N.E.2d 43; Ritgers v. City of Gillespie (1953), 350 Ill.App. 485, 113 N.E.2d 215.) The courts have extended this duty to keeping the parkways free of obstacles which create an unreasonable risk of harm. See Greig v. City of Park Ridge (1964), 49 Ill.App.2d 237, 199 N.E.2d 609.

In the present case the plaintiff is seeking damages for injuries she suffered when she fell while attempting to walk along the top of a fence, constructed of metal pipes, which was situated on the parkway. Since her conduct hardly constituted a use of the parkway in the ordinary manner, we believe that the City was under no duty to protect the plaintiff from injury while engaged in such activity. We conclude that the plaintiff has failed to plead sufficient facts to sustain an action for negligence and that the trial court properly dismissed the action as to those allegations.

The plaintiff also alleged that the City failed to enforce its applicable ordinances. In particular, the plaintiff points to sections 33-1 and 34-1 of the Municipal Code of Chicago. Chapter 33 of the Code regulates the work which may take place on and under the public ways and section 33-1 requires permits for making an opening in a public way. This ordinance provides, in pertinent part, as follows:

"It shall be unlawful for any person to make an opening in any public way or other public place without first obtaining a permit therefor from the Commissioner of Streets...