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Warzynski v. Village of Dolton

OPINION FILED SEPTEMBER 26, 1975.

PAMELA WARZYNSKI, APPELLEE,

v.

VILLAGE OF DOLTON ET AL. — (THE VILLAGE OF DOLTON, APPELLANT,

v.

MARTIN NOVAK, APPELLEE.)



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. John C. Fitzgerald, Judge, presiding. MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 21, 1975.

About midnight on March 24, 1968, the plaintiff, Pamela Warzynski, who was a passenger in a car driven by Martin Novak, suffered severe lacerations to her head and face when, as the result of a sudden stop, she was thrown forward into the windshield. The abrupt stop occurred when the car struck a manhole cover that protruded above the unpaved surface of the unlit, gravel-covered road into which Novak had turned. The area in question was within the Village of Dolton.

The plaintiff's complaint was brought against both Novak and the Village of Dolton. It alleged that Novak had been negligent in his operation of the motor vehicle and that the Village had been negligent in its upkeep of the road. The Village filed a third-party complaint against Novak, seeking indemnification from him in the event it should be found liable. At trial, the plaintiff dismissed her action against Novak and proceeded solely against the Village. A verdict in the sum of $20,000 was returned in her favor, and a verdict in the same amount was returned in favor of the Village and against Novak in the third-party action. Both the Village and Novak appealed from the judgments entered on the verdicts. The Appellate Court, First District, affirmed the judgment against the Village but reversed the judgment against Novak (23 Ill. App.3d 50). We granted leave to appeal.

Two questions are presented: (1) whether the Village was properly held responsible for maintenance of the surface of the road; and, if so, (2) whether it was entitled to indemnification from Novak.

The resolution of the first issue depends upon whether the unpaved road in question, referred to as 155th Place, had been accepted by the Village after it had been offered for dedication by its private developer. It is the position of the Village that the evidence was insufficient as a matter of law to establish acceptance, and that therefore the road was not the responsibility of the Village at the time of the accident. We agree.

Dante Avenue is a paved north and south street in the Village of Dolton. It dead-ends at the unpaved road on which the accident occurred. That road, referred to as 155th Place, runs east from Dante to Blackstone Avenue, a distance of less than 240 feet. It is located within a residential subdivision that was being developed by subdividers and contractors referred to in the record as "Henning & Johnson." When Henning & Johnson filed the plat of the proposed subdivision, 155th Place was designated as a dedicated street. Both parties apparently agree that this was sufficient to constitute an offer of dedication.

As the development progressed, the contractor laid out the roads according to the plat. The roads were prepared for surfacing, but the contractor appears to have postponed that step until residences were built along them. At the time of the accident, no residences had been built along 155th Place. Although the contractor had put up a street sign, the surface of the road had not yet been brought up to grade or paved. The Village admitted in its answer, however, that it "kept, maintained, supervised, operated and controlled a certain water main on 155th Place at or near Dante Avenue in said Village."

The Superintendent of Public Works for the Village, Maurice Albrect, testified that it was the policy of the Village to accept privately developed roads only after they had been brought into conformity with Village standards. He said that the paved roads in this subdivision had been so accepted, but that 155th Place and other unpaved roads had not. His department had undertaken repairs on accepted streets and had kept them snow-plowed in winter, but had done no snow-plowing or any other road work on 155th Place or other unaccepted roads in the subdivision. The only contact which the Village ever seems to have had with this road was through the operation of the water main referred to in the answer of the Village.

The plaintiff points to several factors which she urges are sufficient to show public acceptance of the offered dedication of 155th Place: (1) the alleged issuance by the Village of construction permits for the installation of curbs and drains in the road; (2) the acquiescence in the installation of the street sign which met Village standards and bore the description "155th Place"; (3) the failure of the Village to place barricades at the west end of the road; (4) the necessary and beneficial use of the road by the public; and (5) the operation of a water main by the Village "on 155th Place at or near Dante Avenue." The plaintiff argues that the cumulative weight of these factors was sufficient to permit the jury to find that the offered dedication of the road had been accepted by the Village.

We do not think that any weight can be given to the first factor. Building permits are normally required for all private construction work, in order to ensure compliance with prescribed standards. Issuance of a permit for the construction of a private road does not automatically convert it into a public street.

The erection of a standard street sign for 155th Place was also a private act, apparently done as part of the work required in order to bring the road into conformity with Village standards so that the Village would accept it. In our opinion the Village did not, by permitting work of this kind to proceed, bar itself from requiring that the street be paved and otherwise completed by the private developer before the taxpayers of the Village could be compelled to assume the burden of repairing and maintaining it.

The third factor, which concerns the Village's failure to barricade the uncompleted street, actually militates against the plaintiff's argument, since the erection of barricades would have suggested that the Village regarded the uncompleted project as its own to safeguard and maintain. Albrect testified that the Village did not obstruct 155th Place because that area was regarded as the responsibility of the owners of the property — "the contractors."

So far as public use is concerned, the evidence showed only that the road was occasionally used by some people as a shortcut between the two parallel streets which it was intended to connect. It also showed, however, that there were other streets available for that purpose. Indeed, an impressive indication of the infrequency of public travel on 155th Place was the testimony of co-defendant Novak that he had previously used the area as a place to "park" with his dates, and that he had gone there for that purpose on the night of the accident.

But the plaintiff argues that the operation by the Village of a water main under the road is sufficient of itself to show acceptance of the offered dedication. She relies heavily upon the following language from ...


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