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Deren v. City of Carbondale

AUGUST 7, 1973.

PATRICK T. DEREN, BY DALE F. DEREN, HIS MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

THE CITY OF CARBONDALE ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Jackson County; the Hon. EVERETT PROSSER, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from the dismissal of his amended complaint for personal injuries. Defendants cross-appeal from a part of the same order allowing leave to file the amended complaint and in turn then dismissing it.

Plaintiff's amended complaint alleges that plaintiff is a student attending Southern Illinois University. In November 1966, as a 19-year-old minor, while in the exercise of ordinary care for his own safety, he was struck and injured by a hit-and-run automobile in the night when he was a pedestrian on a certain north and south roadway (Wall Street) in the defendant city. "For a long period of time prior thereto" the city had held out this roadway for use by the public; by reason of its location, South Wall was regularly used by a large number of pedestrians, especially persons attending or associated with Southern Illinois University, and that by use, the edge of the roadway had become a pedestrian walkway which the city knew or should have known; by reason thereof a duty arose on the city to maintain said pedestrian walkway in a reasonably safe condition for use by members of the walking public, among which was the plaintiff.

Negligence in seven different particulars was charged: failure to use ordinary care to maintain; failure to provide a separate pedestrian walkway; failure to provide railings, rails, or barriers; failure to warn drivers of pedestrians; failure to warn pedestrians of danger; failure to provide adequate street lighting; and permitting steep embankments to exist adjacent to the roadway, requiring pedestrians to walk in the roadway. The defendants are the city, the mayor, the city manager and the commissioners of public property, streets, and public safety of the City of Carbondale.

• 1 The cross-appeal must be disallowed since the plaintiff requested leave to amend his complaint within thirty days of the sustaining of a motion to dismiss the original complaint. This preserved the jurisdiction of court beyond the time in which the original dismissal would have become final. The court did not err in exercising its discretion to permit amendment of the complaint under the circumstances revealed here.

The plaintiff's appeal questions the propriety of the trial court's dismissal of the plaintiff's first amended complaint. The essential issue raised by the plaintiff distills to this: Does a city, possessed of knowledge of regular and heavy pedestrian use of a street planned, designed, and built solely for vehicular traffic, have a duty by reason of its knowledge to take reasonable precautions to safeguard such pedestrians from injury by vehicles in the various particulars claimed by the plaintiff?

• 2 A number of plaintiff's specific allegations may be eliminated by the terms of the Local Governmental and Governmental Employees Tort Immunity Act. (Ill. Rev. Stat., ch. 85, secs. 1-101 et seq.) This statute was enacted in 1965 following a number of statutes and court decisions which had made basic changes in the law governing governmental subdivisions and municipal corporations. It is not necessary here to detail the history of these changes which have been frequently discussed. Suffice it to say that the historical distinction between proprietary and governmental functions has been generally abolished as the determining factor in liability of a local governmental entity. This detailed statute covers much of the area of liability and non-liability where persons claim injury and damages at the hands of various public bodies. The validity of the statute is not challenged in this case by any of the parties.

Part 2 of article II of this enactment deals with the immunity of public employees. Section 2-201 relieves a public employee from liability where his position involves the determination of policy or the exercise of discretion. Section 2-205 relieves a public employee from liability for an injury caused by his adoption or failure to adopt an enactment or by his failure to enforce any law.

Article III is concerned with immunities from liability for injuries occurring in the use of public property. The claim in this case is based upon the use of public property. Section 3-102 places a duty upon the entity to exercise ordinary care in the maintenance of its property,

"* * * for the use * * * 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 sufficient time prior to an injury to have taken measures to remedy or protect against such conditions." (Emphasis supplied.)

The next section of the statute, 3-103(a), provides that the entity is not liable,

"* * * for an injury caused by the adoption of a plan or design of a construction of, or an improvement to public property where the plan or design has been approved in advance of the construction or improvement by the legislative body of such entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved. The local public entity is liable, however, if after the execution of such plan or design it appears from its use that it has created a condition that it is not reasonably safe."

Subsection (b) provides "A public employee is not liable under this Article for an injury caused by the adoption of a plan or design of a construction of, or an improvement to public property."

The next paragraph provides that the entity and public employees are not liable for injuries caused by the failure to initially provide traffic control devices, signs and road markings.

Section 3-108 provides that the entity and public employees are not liable for an injury caused by the failure to supervise an activity on or the use of any public property.

• 3 From these statutory provisions, it appears that public employees, which includes all of the defendants here except the city, are exempted from liabilities having to do with the design and construction of improvements to public property. In the particular instance involved, it is obvious, and charged, that the city owned, controlled, maintained and possessed the roadway involved. The individual defendants in their respective municipal offices are charged with having planned and designed the improvement. Since public employees are exempted from liability where a plan or design has been adopted by the legislative body of the local governmental entity, and the condition or improvement having been constructed in accordance with the approved plan and design, no liability is placed upon the public ...


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