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Fugate v. City of Peoria

OPINION FILED DECEMBER 29, 1976.

FLORENCE FUGATE, CONSERVATOR OF THE ESTATE AND PERSON OF THOMAS FUGATE, INCOMPETENT, PLAINTIFF-APPELLANT,

v.

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



APPEAL from the Circuit Court of Peoria County; the Hon. EDWARD E. HAUGENS, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 2, 1977.

At about 11 p.m. on February 12, 1971, Carl Carter was driving past St. Francis Hospital in Peoria when he hit Thomas Fugate, a pedestrian crossing guard who was standing in a pedestrian crosswalk assisting two hospital employees across Glen Oak Avenue on their way to work. Fugate suffered broken bones and permanent brain damage. Plaintiff Florence Fugate, as conservator for her husband, brought a personal injury suit against both Carter and the City of Peoria. After a jury trial, a verdict for $400,000 was returned against Carter, and a verdict of no liability was returned in favor of defendant City of Peoria. Plaintiff appeals from the judgment entered on the verdicts, and seeks a new trial.

In Count I of her amended complaint, plaintiff alleged that the defendant City of Peoria committed one or more of the following:

"(a) Negligently designed, planned or constructed a pedestrian crosswalk so that its use created a condition that was not reasonably safe.

(b) Negligently failed to adequately illuminate a pedestrian crosswalk.

(c) Negligently failed to provide pedestrian crossing signals and traffic lights at a pedestrian crosswalk when such signals and lights were necessary to warn of a condition which was not reasonably safe."

At the close of all the evidence, the city moved for a directed verdict. After arguments were heard, plaintiff withdrew allegations (b) and (c), and the court then denied the motion.

According to the testimony at trial, in 1963 the city established a crosswalk controlled by a traffic signal in front of the mid-block main entrance to St. Francis Hospital. This signal was not timed as a normal traffic light, but was activated by a pedestrian when he wished to cross the avenue. In 1967 the main entrance was closed during construction of an addition to the hospital, and, at the hospital's request, the city moved the crosswalk traffic signal down the block near the Children's Hospital entrance. In late 1968, after the main entrance was reopened and an enlarged parking lot across the street was put in use, the hospital requested the city to return the traffic signal to the main entrance location.

The City Council had originally approved installation of a traffic signal at the main entrance crosswalk. Charles Wegel, former city traffic engineer, testified that the removal of the signal was intended to be temporary and that he had intended to return the signal to the main entrance location. He had the main entrance crosswalk painted on the street surface in 1969 as a part of the process of relocating the signal. Wegel left his position with the city in May of 1970 and was succeeded by James Hauck. Hauck testified that he held discussions concerning relocation of the crosswalk signal but that it had not been installed at the main entrance on February 12, 1971, the date of the accident.

When the pavement markings were completed in 1969, a crossing guard was stationed at the main entrance crosswalk, and at night he was equipped with an orange vest and gloves, reflective badges, and two red flashlight wands. The overhead traffic signal remained at the Children's Hospital entrance although there were no crosswalk markings on the pavement at that location.

On the night Fugate was injured, he was standing in the crosswalk to stop traffic so two hospital employees could cross the street. Defendant Carter came up the hill on Glen Oak Avenue from the south and struck Fugate, hurling him through the air. Carter did not stop and testified that he was feeling the effect of the beers he had drunk during the evening.

Fugate became comatose as a result of a brain injury. His condition was stable at the time of trial, but he was not expected to regain consciousness during his lifetime, and he required constant nursing care.

On appeal from the judgment in favor of the defendant city, plaintiff contends that the trial court erred in its application of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1975, ch. 85, par. 1-101 et seq.). The allegation of negligence which was submitted to the ...


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