Warzynski v. Village of Dolton

• Decision Date: 12 July 1974
• Docket Number: No. 58930,58930
• Citation: 23 Ill.App.3d 50,317 N.E.2d 694
• Parties: Pamela WARZYNSKI, Plaintiff-Appellee, v. VILLAGE OF DOLTON, Defendant-Appellant, Third Party Plaintiff-Appellee, v. Martin NOVAK, Third Party Defendant-Separate Appellant.
• Court: United States Appellate Court of Illinois

Page 694

317 N.E.2d 694

23 Ill.App.3d 50

Pamela WARZYNSKI, Plaintiff-Appellee, v. VILLAGE OF DOLTON, Defendant-Appellant, Third Party Plaintiff-Appellee, v. Martin NOVAK, Third Party Defendant-Separate Appellant.

No. 58930.

Appellate Court of Illinois, First District, Fifth Division.

July 12, 1974.

As Modified on Denial of Rehearing Sept. 27, 1974.

Jacobs, Williams & Montgomery, Ltd., Chicago, for defendant-appellant; Barry L. Kroll, Chicago, of counsel.

John W. Purney, Chicago, for plaintiff-appellee; Neal K. Wishnick, Chicago, of counsel.

Lisco & Field, Chicago, for plaintiff-appellee Warzynski; Sidney Z. Karasik and Gary E. Dienstag, Chicago, of counsel.

SULLIVAN, Presiding Justice.

This is an appeal by the Village of Dolton (Village) from a judgment entered on a verdict of $20,000 in favor of plaintiff. Martin Novak (Novak), as third party defendant, separately appeals from an indemnity judgment in favor of the Village against him.

On its appeal, the Village contends (1) plaintiff failed to prove it accepted and owned the street on which the occurrence took place; (2) it was error to give plaintiff's instruction concerning defendant's acceptance of the street; and (3) plaintiff failed to prove that the Village was negligent.

In his separate appeal from the third-party judgment, Novak also contends plaintiff failed to establish the Village's acceptance of the street or its negligence. In addition, he asserts the Village is not entitled to indemnification from him because (a) the Village was actively negligent; and (b) there was no pre-tort relationship existing between the Village and him.

Plaintiff, a passenger in an automobile driven by Novak, was injured when the automobile came to a sudden stop on 155th Place in the Village of Dolton. The facts indicate that on March 24, 1968, Novak and plaintiff were traveling in a southerly direction on Dante Avenue, a paved street within the corporate limits of the Village. Dante Avenue turns east into 155th Place at an L-shaped intersection. Novak turned on 155th Place, which was unpaved and gravel covered, and traveled a few feet before his automobile came to a sudden halt, causing injuries to plaintiff when her head struck the windshield.

Plaintiff thereafter filed the instant suit against both Novak and the Village, asserting in her amended complaint that the Village negligently maintained and controlled 155th Place, and was negligent in permitting a hole and water main to exist on 155th Place and, further, that Novak was negligent in the manner in which he operated his automobile. In its answer, the Village admitted it controlled and maintained a water main on 155th Place, at or near Dante Avenue, but denied the balance of plaintiff's allegations. The Village then proceeded to file a third-party complaint against Novak, seeking indemnity on an active-passive negligence theory in the event a judgment would be entered for plaintiff against it.

The following testimony was adduced at trial: Maurice Albrecht, Superintendent of Public Works for the Village, testified under section 60 that a plat of subdivision recorded in 1958 and offered into evidence by plaintiff, indicated that 155th Place was marked 'hereby dedicated' and that when the dedication was recorded, Dante Avenue was not laid out or paved; that 155th Place remained unpaved through the time of the occurrence here; that sewer and manhole covers had been on 155th Place for about eight years, and curbs and sidewalks were on Dante Avenue, with curbs also being on 155th Place; that the curbs, sidewalks and manhole covers were installed by others under permits issued by the Village; that there were street signs on the corner of Dante Avenue and 155th Place, designating those to be the respective streets; that the signs conformed to the standards of the Village and were placed there by others under its authority; and, that the Village never put any barricades on 155th Place, because of its contention that it was private property. Albrecht also expressed his belief that when the plat of subdivision was recorded, 155th Place would ultimately become part of the Village.

Plaintiff testified that she and Novak were returning from Chicago at approximately 12:00 A.M. and were traveling south along Dante Avenue at 20 miles per hour. After turning on 155th Place, the car came to a sudden halt and she was propelled forward, causing her head to strike and break the windshield, cutting her face. On cross-examination, plaintiff asserted that she noticed no streetlights on 155th Place and that the street was lower in grade than Dante Avenue.

Novak's testimony was substantially similar to that of plaintiff, but he also testified that when the car came to a stop he heard 'a thudding sound, a hard, metal sound', and that when he backed out he heard 'a little grinding sound around the transmission.' Moreover, when he returned to the scene the following day, he saw a sewer protruding above ground level, that the soil was depressed around the sewer, and that there was broken glass within four feet of the sewer. He also observed that the underside crossframe of his auto had been damaged and that the transmission had moved.

During the trial, plaintiff dismissed her action against Novak and proceeded against the Village. A $20,000.00 verdict was returned in her favor, and, pursuant to the Village's instructions incorporating the theory of active-passive negligence, a similar verdict for indemnity was returned in its favor as third-party plaintiff against Novak. Both the Village and Novak have appealed the judgments against them.

OPINION

Initially, both the Village and Novak, as third party defendant, contend that the Village had no duty to plaintiff because of her failure to establish that 155th Place was dedicated and accepted. Implicit in any common law dedication is not only the necessity of finding the intent to dedicate, but also the acceptance by the public. (McCue v. Berge, 385 Ill. 292, 52 N.E.2d 789.) In this regard, we note that the question of the Village's acceptance was submitted to the jury and, based upon the facts elicited at trial, the jury found the dedication of 155th Place had been accepted. We are now being asked to review the decision on this factual question and, in support of their contention, the Village and Novak assert that there was never any intention evidenced by the Village to accept 155th Place, and that it was its policy not to accept a street unless or until it conformed to standards established by it for approval. 155th Place had not met those requirements, and they argue that in the absence of any formal acceptance, there was no liability for an accident occurring on a street not owned by the Village.

We cannot subscribe to this argument. The requisites of a common law dedication are (1) an intent on the part of the owner to donate the land to public use (2) acceptance by the public; and (3) clear, satisfactory and unequivocal proof of these facts. (City of Greenville v. File, 130 Ill.App.2d 878, 265 N.E.2d 518.) There was not nor is there now any question raised as to the efficacy of the offer to dedicate by the subdividers of the property. Thus, the issue to be resolved is whether or not there are sufficient facts to indicate an implied acceptance by defendant. A litany of factors have been used to establish a municipality's implied acceptance of an offered parcel of land. For our purposes, however, we will only discuss those which we deem sufficient to raise a factual question of whether an acceptance could be implied.

Illinois cases have repeatedly held that acceptance of an offer of dedication could be implied from the fact that the municipality had constructed or authorized the construction of sewers, water pipes or the like on the subject parcel. (Consumers Co. v. Chicago, 268 Ill. 113, 108 N.E. 1017; Trustees of Schools v. Dassow, 321 Ill. 346, 151 N.E. 896; 52 A.L.R.2d 263, 271.) As stated in McCue v. Berge, 385 Ill. 292, 301, 52 N.E.2d 789, 794:

'Acceptance of streets by a city or village may be shown by the affirmative act of taking possession thereof for the purposes of placing water mains or sewers therein or by the general user by the public for a considerable period of time.'

In the instant case, there is uncontradicted testimony that the Village maintained a water main on 155th Place to serve the residents of the Village.

In addition, an acceptance of a dedication may be implied from use by the public for the purpose for which the dedication was made. (Kemper v. Campbell, 27 Ill.2d 376, 189 N.E.2d 282.) Here, a resident of the Village testified that not only did he drive on 155th Place, but that he saw other automobiles use the street for a period of years prior to the occurrence. Moreover, street signs, conforming to the standards of the Village, clearly designated 155th Place as a street and could be construed as an invitation to the public to use it.

It is our opinion that cumulatively there was sufficient evidence presented so that a question of fact was raised as to whether there was an implied acceptance of the offer to dedicate (Campion v. City of Decatur, 151 Ill.App. 161) and, from our review of the record, we believe the jury's finding on this issue is supported by the record.

The Village and Novak further assert that plaintiff failed to prove her case in that there was insufficient evidence presented to establish the negligence of the Village and, in any event, they argue that the condition of the road was not a proximate cause of the injury. Since we have heretofore determined that the jury's finding of the acceptance by the Village of 155th Place was supported by the evidence, it follows that it had a duty to maintain that street in a reasonably safe condition. (Ill.Rev.Stat.1971, ch. 85, par. 3--102; Cunis v. Brennan, 7 Ill.App.3d 204, 287 N.E.2d 207.) Moreover, the facts indicate that it had or should have had sufficient notice of...