Warning v. City of Joliet

• Decision Date: 22 August 2012
• Docket Number: No. 3–11–0309.,3–11–0309.
• Citation: 363 Ill.Dec. 157,974 N.E.2d 954,2012 IL App (3d) 110309
• Parties: Kristine WARNING, as Independent Executor of the Estate of Joanne M. Warning, Deceased, Plaintiff–Appellant, v. The CITY OF JOLIET, a Municipal Corporation, Defendant–Appellee (Amanda M. Ibarra, Defendant).
• Court: United States Appellate Court of Illinois

2012 IL App (3d) 110309

974 N.E.2d 954

363 Ill.Dec. 157

Kristine WARNING, as Independent Executor of the Estate of Joanne M. Warning, Deceased, Plaintiff–Appellant,

v.The CITY OF JOLIET, a Municipal Corporation, Defendant–Appellee (Amanda M. Ibarra, Defendant).

No. 3–11–0309.

Appellate Court of Illinois, Third District.

Aug. 22, 2012.

Andrew A. Muchoney (argued), McKeown Fitzgerald Zollner Buck Hutchison & Ruttle, Joliet, for appellant.

John P. Wise (argued), Assistant Corporation Counsel, Joliet, for appellee.

OPINION

Justice LYTTON delivered the judgment of the court, with opinion.

[363 Ill.Dec. 159]¶ 1 Plaintiff, Kristine Warning, as independent executor of the estate of Joanne M. Warning, filed an action against defendant, City of Joliet (City), to recover damages for personal injuries her mother sustained when she was struck by a vehicle while crossing the street inside a crosswalk. Following plaintiff's case-in-chief, the trial court entered a directed finding in favor of the City. On appeal, plaintiff claims that the trial court erred in finding (1) that the City did not owe a duty of reasonable care relating to street lighting and crosswalks on Madison Street, (2) that no evidence was presented as to actual or constructive notice that certain streetlights were inoperable, and (3) that no evidence was presented that the City failed to make a reasonable inspection of the crosswalk or failed to erect additional signage around the crosswalk. We affirm.

¶ 2 Plaintiff filed a complaint against the City alleging that it was liable for injuries Joanne, age 79, suffered when she was struck by a vehicle driven by Amanda Ibarra on Madison Street outside Provena Hospital on September 5, 2005. Joanne died from the injuries a few weeks later. Plaintiff alleged that her mother's death was the result of the City's negligence. Specifically, the complaint alleged that the City failed to (1) maintain the streetlamps on Madison Street, (2) warn of the inoperative streetlamps near the crosswalk, (3) make a reasonable inspection of the crosswalk, and (4) have or follow procedures for the inspection of streetlamps at crosswalks.

¶ 3 At the bench trial, Jesse Harper testified that he was employed by Provena as a full-time security officer from May of 2005 through September or October of 2007. His job was to ensure the safety of the employees and visitors of the hospital. He observed the roadways and lighting around Provena. From June or July 2005 through September 2005, he noticed several inoperable streetlights on Madison Street. Typically, during that time, he noted about one per week. When he found a streetlight that was out, he would mark the inoperable light with yellow caution tape. He testified that the light at the parking lot on the east side of Madison Street was out the night of the accident and prior to the accident, but he did not know for how long.

¶ 4 Harper testified that it was not his responsibility to tell the City that the lights were out. He simply reported them to his supervisor. He was not aware of any reports made to the City about streetlights at the parking lot on Madison.

¶ 5 On September 5, 2005, he remembered a woman being struck in the crosswalk. He did not see the accident but he heard the screeching brakes. Harper went to the crosswalk and saw Joanne on the ground in front of a vehicle. He testified that it was dark outside at the time of the accident and that he did not look specifically at the streetlights.

¶ 6 Amanda Ibarra testified that she works as a nurse at Provena. On September 5, 2005, she worked until 2:30 p.m. and then stayed beyond her shift. She worked more than 14 hours that day. She left the employee parking lot on the Madison Street side that evening. The road was dry, and it was dark out. The lights on her car automatically turned on. She was able to see the roadway when she pulled out. Before entering the crosswalk on Madison, she slowed down, but she hit a pedestrian. Although she applied her brakes as soon as she saw the woman, it was too late. The woman was walking in her lane of traffic and was wearing dark clothing. Ibarra testified that she believed the lighting affected her ability to see the woman.

¶ 7 Prior to September 5, 2005, she had no knowledge of any streetlights out on Madison Street. The crosswalk was illuminated that evening, but she did not know if the light was on the crosswalk or how the crosswalk was lit.

¶ 8 Officer Shana Murnane testified that there are no policies at the City police department as to reporting streetlight outages. Officers could report streetlight outages if they see them, but there are no written policies.

¶ 9 As part of her job, Murnane reconstructs accident scenes. On September 5, 2005, she investigated the crosswalk on Madison Street. The roadway had average nighttime lighting. Although there were streetlights in the area, the streetlight on the east side of the street, approximately 80 feet to the south of the crosswalk, was not operational. There was no yellow caution tape tied around the pole. There was another operational street light 100 feet to the north of the crosswalk. There was also ambient lighting from the moon, parking lot and the entrance to the hospital.

[363 Ill.Dec. 161]¶ 10 Officer Michael Rouse testified that there was no policy in 2005 for the police officers to report streetlight outages or hazardous road conditions. On September 5, 2005, he reported to the scene of the accident in front of the hospital. Officer Rouse was the lead reconstructionist, and it was his responsibility to gather evidence at the scene. He noticed that a streetlight was out to the south of the crosswalk. He testified that the Joliet police department tied yellow tape around the pole of that light. No other markings were on the pole at that time. He did not know if the light was out at the time of the accident. He also noted that there was other ambient lighting, including a smaller light pole at the other end of the crosswalk in the hospital's driveway. Although the diagram of the scene showed a streetlight directly above the crosswalk, that was an error. There are no lights directly over the crosswalk. There is a streetlight 100 feet to the north of the crosswalk. There is also another streetlight to the south, but Officer Rouse did not know how far away it was.

¶ 11 Dennis Mulcahy testified that he has been a security officer for the hospital for 7 1/2 years. He patrols the parking lots and the hospital building nearby. He is responsible for patrolling Madison Street, including the crosswalk and the visitor's parking lot. Prior to September 5, 2005, he observed streetlight outages around Provena. He saw several streetlights out on Madison Street in 2005.

¶ 12 On September 5, 2005, he heard a thud and screeching tires and turned to see a woman lying in the street with a car in the crosswalk. Mulcahy testified that he believed some streetlights were out that night and that some streetlights had not been working for some time, but he did not know which lights were out or how long they had been out before the accident. Mulcahy never called the City regarding streetlight outages, and he did not recall if he ever informed anyone on the date of the accident that there were streetlights out on Madison Street. He did not prepare any written report.

¶ 13 Clarke Corcoran works at Provena. On September 13, 2002, he sent a letter to the City regarding complaints that the hospital's safety committee had received about the crosswalk on Madison Street. Specifically, the letter referred to problems with traffic refusing to slow down for people within the crosswalk. The letter did not refer to any problem with lighting.

¶ 14 Karen Plyman is employed with the City of Joliet as an information service technician. She oversees the mail room and processes citizen complaints. If she receives a call of a streetlight outage, she faxes it either to ComEd or the City public works, depending on the location and type of pole. If she receives a complaint about streetlight outages of lights on wooden poles, she refers it to ComEd because ComEd maintains the wooden poles.

¶ 15 The City keeps a log of outages. Plyman reviewed the file from 2000 to 2005 and did not find any complaint of a streetlight outage or malfunctioning streetlight on Madison Street near the hospital during the time of the accident.

¶ 16 Russell Lubash testified that he is the traffic engineer for the City and has been for the past six or seven years. He is responsible for traffic-related engineering projects, including the maintenance of streetlights and traffic signals. Street lighting design depends on the project and the road classification, as well as City standards for spacing streetlights. The City guidelines require that streetlights be placed 250 feet apart.

¶ 17 Lubash maintains a log of complaints regarding streetlights and poles. If he receives a complaint, he reports it to the electrical department. The City keeps a log of all complaints and forwards those that do not involve City poles to ComEd. Once a month, electricians turn on the cabinets to the streetlights and perform routine maintenance.

¶ 18 Lubash stated that the streetlight in question was probably installed in the 1960s when the hospital was built. The streetlight is maintained on a wooden pole and owned by ComEd. Lubash further testified that neither the Manual of Uniform Traffic Control Devices (MUTCD) nor the American National Standards Institute requires periodic studies to be conducted concerning streetlights on roadways after they are installed. Lubash noted that the Illuminating Engineering Society of North America (IESNA) publishes recommended practices for streetlights. However, the IESNA recommendations pertain only to new streetlight system installations and do not apply to old ones.

¶ 19 Lubash further testified that for a marked crosswalk, the MUTCD requires that the walkway be outlined...