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Horrell v. City of Chicago

OPINION FILED JUNE 30, 1986.

MARY HORRELL, PLAINTIFF-APPELLANT,

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Dean J. Sodaro, Judge, presiding.

PRESIDING JUSTICE QUINLAN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Mary Horrell, brought suit in the circuit court of Cook county against the city of Chicago (city), the Chicago Transit Authority (CTA), and Joseph Kawa, an individual, for injuries resulting when Kawa's truck hit the plaintiff as she crossed a city street. One circuit court judge denied a motion of the city for summary judgment, but, subsequently, a second circuit court judge, after further consideration, granted the city's motion. At the same time, the second judge also granted the CTA's motion for summary judgment. Trial on the remaining allegations concerning Joseph Kawa was continued pending the disposition of this appeal.

The facts underlying the suit are as follows. On July 1, 1983, Mary Horrell got off a CTA bus on the east side of State Street at the "T" intersection of State and Maple in Chicago. Following the bus' departure from the intersection, she proceeded to cross State Street in a westerly direction at a point where no crosswalk markings had been painted. As she was crossing the street, she was struck by a truck driven by Joseph Kawa. It is undisputed that crosswalks existed across State Street within one-half block in both directions of the point where Ms. Horrell chose to cross the street. Ms. Horrell brought suit against the city of Chicago, the CTA, and Joseph Kawa for injuries resulting from the collision. She alleged that the city was negligent in failing to provide a crosswalk for a bus stop at a busy intersection and that the city's own "Street Marking Standards" required it to do so. The city denied the allegations of negligence and asserted the Local Governmental and Governmental Employees Tort Immunity Act as an affirmative defense. (Ill. Rev. Stat. 1985, ch. 85, par. 1-101 et seq.) The city filed its motion for summary judgment on March 5, 1985, which, as stated previously, was originally denied by the first judge on April 24, 1985. Ms. Horrell was given leave to file a first amended complaint which she did. The amended complaint alleged that the city negligently:

(a) failed to provide a crosswalk in violation of section 27-398 of the Municipal Code of Chicago;

(b) failed to provide a crosswalk in accordance with its "Street Marking Standards" adopted by the City Bureau of Traffic Engineering and Operations;

(c) permitted a bus stop to be located at an unmarked crosswalk in violation of section 27-412 of the Municipal Code of Chicago;

(d) permitted another municipal corporation (the CTA) to "usurp and abuse its obligation" to establish and maintain bus stops.

The case was transferred to the second judge, Judge Sodaro, on June 10, 1985. The city filed an answer to the plaintiff's complaint on June 12, 1985. No notice of motion or specific motion for summary judgment directed against this first amended complaint was filed by the city. However, the record reveals that on June 13 and 14, 1985, extensive discussions were conducted by Judge Sodaro and counsel for plaintiff concerning motions for summary judgment on behalf of both the CTA and the city. After some additional arguments, Judge Sodaro granted both motions. In granting the city's motion, the trial judge found that there was "no duty running from the City to the plaintiff in this case, that there was no contested issue of fact," and accordingly, the city was entitled to summary judgment. Ms. Horrell now appeals the trial court's granting of summary judgment in favor of the city.

• 1 It is well settled that a motion for summary judgment should only be granted if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005; Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 380, 313 N.E.2d 457.) The purpose of summary judgment is not to try an issue of fact but to determine whether one exists. (Boylan v. Martindale (1982), 103 Ill. App.3d 335, 339, 431 N.E.2d 62.) If all the evidence presented to the trial court does not raise an issue of material fact, then the motion for summary judgment should be granted, as stated above, if warranted as a matter of law. Kramer v. Weedhopper, Inc. (1986), 141 Ill. App.3d 217, 221, 490 N.E.2d 104.

• 2 While the primary issue on appeal is whether the trial court erred in granting the city's motion for summary judgment, Ms. Horrell also alleges that the trial court committed procedural errors in addressing the city's motion. Specifically, Ms. Horrell contends that the question of duty, which was the issue here, is a question of law that is more properly decided by a motion to dismiss rather than a motion for summary judgment; and, that the city's written motion for summary judgment was actually filed prior to the first amended complaint and did not directly relate to the amended complaint; and thus, she says summary judgment was improperly granted. Our review of the record, however, reveals that there were over two days of discussion and argument before Judge Sodaro concerning the city's motion for summary judgment and no objection was made by any party concerning any of the procedures employed by the city or followed by the court. It is well settled that alleged questions of error not raised in the trial court are waived for purposes of review and may not be raised for the first time on appeal. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill.2d 486, 500, 475 N.E.2d 872.) Therefore, we need not consider these questions raised by the plaintiff concerning the propriety of the procedures in considering the city's motion.

• 3 However, we note that in a cause of action alleging negligence, such as here, the plaintiff must establish the existence of a duty, a breach of that duty and an injury proximately resulting from the breach of the duty. (Pelham v. Griesheimer (1982), 92 Ill.2d 13, 18, 440 N.E.2d 96.) This question of duty is a question of law, as plaintiff contends. (Curtis v. County of Cook (1983), 98 Ill.2d 158, 163, 456 N.E.2d 116.) But, contrary to the plaintiff's contention, a motion for summary judgment does properly address an issue of duty. (Eddings v. Dundee Township Highway Commissioner (1985), 135 Ill. App.3d 190, 197, 478 N.E.2d 888.) As our supreme court in Barnes v. Washington (1973), 56 Ill.2d 22, 27, 305 N.E.2d 535, expressly noted:

"This court has also held that the entry of a summary judgment is proper when only a question of law is involved. (Allen v. Meyer, 14 Ill.2d 284.) Thus, if under the pleadings and affidavits it appears that the defendant owed no duty * * *, the granting of [a] motion for summary judgment [is] proper."

Therefore, Ms. Horrell is incorrect in her claim that the question of duty could only be decided by a motion to dismiss.

• 4 In her complaint in the circuit court, Ms. Horrell alleged that the city was negligent in its failure to provide a crosswalk at the intersection of State and Maple. She maintained that the city's negligent failure to place a crosswalk at the intersection caused or contributed to Mr. Kawa's striking her and causing the injuries she suffered. Ms. Horrell does not, however, allege that the city negligently constructed the intersection, or that the crosswalk was established and negligently maintained. Rather, she is contending that two city of Chicago municipal ordinances, Municipal Code of Chicago, sections 27-398 and 27-412, affirmatively impose a duty on the city to paint crosswalks at apparently every bus stop in the city. In the alternative, Ms. Horrell argues that even if the above ordinances do not create such a duty, the city of Chicago "Street Marking Standards," as adopted by the City Bureau of Traffic Engineering and Operations, constituted a "plan" under section 3-103(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 3-103(a)), for the installation of crosswalks at intersections to coincide ...


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