Wojdyla v. City of Park Ridge, 71564

• Citation: 148 Ill.2d 417,170 Ill.Dec. 418,592 N.E.2d 1098
• Decision Date: 16 April 1992
• Docket Number: No. 71564,71564
• Parties: , 170 Ill.Dec. 418 Evelyn WOJDYLA, Indiv. and as Adm'x of the Estate of Eugene Wojdyla, Deceased, Appellant, v. The CITY OF PARK RIDGE et al., Appellees.
• Court: Supreme Court of Illinois

Page 1098

592 N.E.2d 1098

148 Ill.2d 417, 170 Ill.Dec. 418

Evelyn WOJDYLA, Indiv. and as Adm'x of the Estate of Eugene Wojdyla, Deceased, Appellant, v. The CITY OF PARK RIDGE et al., Appellees.

No. 71564.

Supreme Court of Illinois.

April 16, 1992.

Rehearing Denied June 1, 1992.

Leonard M. Ring & Associates, P.C., Chicago (Leonard M. Ring and William J. Jovan, of counsel), for appellant.

Baker & McKenzie, Chicago (Francis D. Morrissey, John T. Coleman, Robert W. Smyth, Jr., Michael A. Pollard and Maureen J. McGinnis, of counsel), for appellee City of Park Ridge.

Lord, Bissell & Brook, Chicago (Evan A. Burkholder, Hugh C. Griffin, L. Anthony Lehr and Diane I. Jennings, of counsel), for appellee Commonwealth Edison Co.

Justice CUNNINGHAM delivered the opinion of the court:

Plaintiff, the wife of the decedent, Eugene Wojdyla, filed a complaint in circuit court of Cook County against the City of Park Ridge (City) and Commonwealth Edison Company (Edison). The decedent was struck by an automobile while crossing a highway located in Park Ridge, Illinois. Plaintiff alleged negligence in the placement and maintenance of streetlights on the highway, preventing the driver of the vehicle which struck the decedent from seeing him, and which eventually led to his death. The circuit court granted the City's and Edison's motions for summary judgment, and the appellate court affirmed. (209 ill.app.3d 290, 154 Ill.Dec. 144, 568 N.E.2d 144.) On motion of the plaintiff pursuant to Supreme Court Rule 316, a certificate of importance was issued, establishing jurisdiction in this court. We affirm.

The decedent, Eugene Wojdyla, initially sustained injuries at approximately 5 p.m. on December 29, 1976, while attempting to cross Busse Highway in Park Ridge, Illinois. A car driven by Brice Miller, traveling 30 to 35 miles per hour, struck the decedent in the lane closest to the center line of the highway. The plaintiff's complaint alleges the decedent eventually died as a result of the injuries sustained in this collision.

The highway at that point is a six-lane State highway, including lanes for parking on both sides, with a posted speed limit of 40 miles per hour. Wojdyla's car was parked across the street from his place of employment. He attempted to cross the highway midway between two T-intersections, while the nearest painted crosswalk was approximately one-half mile in either direction. Streetlights were placed 300 to 350 feet apart on one side of Busse on this stretch of the highway. It is unknown which side of the street the lights were placed since neither party or even the record indicates the location of the streetlights. Miller stated in his deposition that he never saw the decedent before the collision. There were no signs or markings at the point where the decedent crossed that indicated it was safe to cross the highway. The City's potential liability results from an agreement between the State of Illinois and the City of Park Ridge. Edison erected the lights lining Busse Highway. The plaintiff has stated that Edison's duties were co-extensive with the City's. Since Edison's liabilities cannot be any greater than those of the City, the opinion will address itself primarily to the City.

The only issue we must address here is whether the circuit court properly granted the defendants' motion for summary judgment. Summary judgments are desirable when, according to the pleadings, affidavits, and depositions on record, no genuine issue of material fact exists. (Ill.Rev.Stat.1989, ch. 110, par. 2-1005.) Thus, where a suit may be determined according to a question of law, a trial court may properly dispose of the case on a summary judgment motion. Allen v. Meyer (1958), 14 Ill.2d 284, 292, 152 N.E.2d 576.

Plaintiff here has alleged negligence on the part of the defendants. To properly state a cause of action for negligence, the plaintiff must establish that the defendant owed a duty of care, a breach of that duty, and an injury proximately caused by the breach. (Curtis v. County of Cook (1983), 98 Ill.2d 158, 162, 74 Ill.Dec. 614, 456 N.E.2d 116.) Whether or not the duty of care exists is a question of law to be determined by the court (McLane v. Russell (1989), 131 Ill.2d 509, 514, 137 Ill.Dec. 554, 546 N.E.2d 499), and thus may be determined on a motion for summary judgment.

Plaintiff presents two arguments to support her view that the defendants owed a duty of care to the decedent. She argues first that a duty existed because the decedent was an intended and permitted user of the street en route to his legally parked car. This argument is based upon section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1989, ch. 85, par. 3-102(a)). She also argues that a duty to provide adequate lighting for the decedent arose when defendants provided lighting on Busse Highway. This argument assumes a duty of care regardless of whether the decedent was an intended and permitted user of the highway under the Tort Immunity Act.

Section 3-102(a) of the Tort Immunity Act reads as follows:

"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 be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition. (Ill.Rev.Stat.1989, ch. 85, par. 3-102(a).)

Thus, for a pedestrian to be protected in the present circumstances by the statute, he must be an intended and permitted user of the property under the control of the city.

Plaintiff has cited several cases in support of her view that the decedent was an intended and permitted user of the highway. In Marshall v. City of Centralia (1991), 143 Ill.2d 1, 155 Ill.Dec. 802, 570 N.E.2d 315, the plaintiff was injured when he stepped into an open sewer manhole on a grass-covered parkway, located between the sidewalk and the street, owned by the city. While approaching an intersection, he noticed that the sidewalk across the street was muddy and had no clean path on which to walk. When he reached the opposite side of the street, rather than walk on the muddy sidewalk, he walked onto the parkway between the sidewalk and the street. While doing so, he stepped into an open manhole, sustaining injuries. The trial court granted a motion for summary judgment to the defendant. The appellate court reversed and this court affirmed. The city had admitted that the plaintiff was a permitted user of the parkway, and this court concluded, based upon the facts, that the plaintiff was an intended user as well.

Marshall is distinguishable from the case at bar, however. First, in Marshall, the municipal property in question was a grass-covered parkway, not a highway. The use of the parkway by the plaintiff presented no conflict to the court between contrary purposes. The pedestrian there was determined to be an intended user of the parkway because his use of the parkway was a customary one. Furthermore, there were no other purposes for the parkway which would preclude the intended use by the plaintiff. The situation in the case at bar is different, however. Here, the purpose of the highway is clearly for the use of automobiles. The lines in the street and the signs by the road are intended for use by vehicular traffic, and the overhead streetlights are spaced according to design to light the way for fast-moving vehicles. Thus, the present situation presents the court with a purpose which conflicts with that argued by the plaintiff. This situation of conflicting purposes on municipal property was not addressed in Marshall.

Plaintiff and the dissent in the appellate court decision (209 Ill.App.3d at 298, 154 Ill.Dec. 144, 568 N.E.2d 144 (Egan, J., dissenting)) cite Molway v. City of Chicago (1909), 239 Ill. 486, 88 N.E. 485, to support the view that pedestrians are intended users of the street. In Molway, the court rejected any argument that a street is designed and built solely for vehicular traffic, holding in this instance that the duty to maintain a street extended to a bicycle rider hitting a hole in the street. However, Molway occurred before the advent of modern travel. The primary mode of vehicular traffic consisted of horse-drawn carriages, which rarely achieved the speed of vehicles on modern highways. Vehicular and pedestrian travel could safely exist side by side on the roadway. Circumstances change, however, a fact which Molway acknowledged:

" 'In the most primitive state of society the conception of a highway was merely a foot-path; in a slightly more advanced state it included the idea of a way for pack animals; and next a way for vehicles drawn by animals * * *. And thus the methods of using public highways expanded with the growth of civilization, until to-day our urban highways are devoted to a variety of uses not known in former times and never dreamed of by the owners of the soil when the public easement was acquired.' [Citation.]" (Molway, 239 Ill. at 491, 88 N.E. 485.)

This historical perspective still holds true, for the developer of modern highways now creates the design for the benefit of automobiles and other vehicles, and rarely for pedestrians.

Additionally, plaintiff and the dissent in the appellate court quote the following language from Molway to support the assertion that pedestrians are intended users of the street: " 'A street is made for the passage of persons and property, and the law cannot define what exclusive means of transportation and passage shall be used.' " (239 Ill. at 490, 88 N.E....