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Nicholson v. City of Danville

OPINION FILED SEPTEMBER 15, 1986.

MYRTLE NICHOLSON, PLAINTIFF-APPELLANT,

v.

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



Appeal from the Circuit Court of Vermilion County; the Hon. Paul M. Wright, Judge, presiding.

JUSTICE SPITZ DELIVERED THE OPINION OF THE COURT:

Trip and fall on State-maintained sidewalk located within municipal boundaries.

Summary judgment for both defendant municipality and defendant adjacent property owner on ground that neither was responsible for sidewalk's maintenance.

We affirm.

This litigation arises from a fall sustained by the plaintiff, Dorothy Nicholson (Nicholson), on October 2, 1981, on a sidewalk on the east side of the Dixie Highway, also known as State Route 1, and adjoining the western boundary of the Dixie Drive In Theatre property. The Dixie Highway runs north and south, and the sidewalk on which Nicholson fell is within the Danville city limits. The Dixie Drive In is owned by defendants Jack A. Butler and Jack A. Butler Enterprises, Inc. (Butler), and by Jack A. Butler's wife, Mildred Butler.

Nicholson filed suit against both the city of Danville and Butler, alleging that they had failed to properly maintain the sidewalk on which she fell and failed to warn the public of the dangers posed by the sidewalk's defective condition. In due course, the circuit court entered summary judgment for both defendants on the basis that at the time of Nicholson's fall, neither was responsible for maintenance of the sidewalk or for its defective condition and that, instead, the sidewalk was at that time owned and maintained by the State. Nicholson appeals these decisions.

Since control over and responsibility for maintenance of the sidewalk on which Nicholson fell are the only issues involved in this appeal, we will mention only the facts relevant to those questions.

Clark E. Baker, Danville's city engineer, stated in an affidavit that the sidewalk on which Nicholson fell is within a State right-of-way. Danville has never contracted with the Illinois Department of Transportation (Department) to maintain that sidewalk.

In a subsequent deposition, Baker stated that Danville probably would not enforce its ordinances relating to obstructions on the stretch of sidewalk in question, but would instead call on the State to remedy any problem regarding the sidewalk. Danville does not issue driveway permits for the stretch of road adjacent to that sidewalk, even though the adjacent land was annexed to the city in 1960. Although the city does act on permits issued by the State for construction of new driveways on that stretch of the Dixie Highway, it does so only in an advisory capacity, and the city's acting on those permits is, according to Baker, a "courtesy signature" procedure. In practice, all maintenance on the section of Dixie Highway adjacent to the sidewalk on which Nicholson fell is performed by the State, but there are no agreements providing for exclusive State maintenance.

In Baker's view, the State requirements for driveway permits generally parallel the city requirements, and where there is a difference, a discussion is held with the State highway engineer in Paris, Illinois. Baker acknowledged that a Department policy statement on access to State highways provides that the requirements of planning and zoning boards, as well as local ordinances, are not altered by the issuance of a Department highway permit, and that issuance of a Department highway permit does not relieve the applicant of the responsibility of obtaining local approvals and permits. However, Danville has apparently never required applicants for driveway permits on State highways to obtain additional local permits. Baker did not recall that any matters respecting maintenance of the section of sidewalk on which Nicholson fell were ever referred to the State, but he did recall that at about the time of Nicholson's fall, the State asked why they had not been notified of problems with respect to the sidewalk.

On cross-examination by Danville's counsel, Baker stated that he was not sure whether Danville has veto power over the construction of driveways leading to or from State highways located within the city limits. He would challenge the issuance of a State driveway permit on a section of roadway if he felt that issuance of the permit would be improper, but was not sure if the State would deny issuance of the permit after such a protest. Baker reiterated that during his eight years as Danville's city engineer, the stretch of sidewalk where Nicholson fell had never been a part of the city's maintenance responsibility, but he stated that he had done no checking to see if Danville had ever been responsible for its maintenance. To Baker's knowledge the sidewalk has never been within any city-State maintenance agreement, but he was not sure that such an agreement did not exist.

Also at a deposition, Bernie S. Rinehart, the Department's permit engineer, stated that many permits have been issued by the State for construction of driveways on the stretch of the Dixie Highway adjacent to which Nicholson fell, and that virtually all of these permits had the prior approval of Danville's mayor and city engineer. Customarily, a permit for construction of a driveway on a State highway within 1 1/2 miles of a city's limits requires the signature of the city's mayor and engineer before it is signed by a Department official. However, this is just a courtesy between the Department and local governments; no Department policy requires that such projects be approved by a municipality's mayor and engineer before the construction proceeds. If city officials refuse to sign such a permit, "they usually inform us why they won't sign them, and then that way we can try to work something out and see what's wrong." The Department does not respect or apply any municipal standards for driveway permits which are more stringent than those prescribed by the State, because it has to issue driveway permits unless there are safety reasons for not doing so.

The sidewalk on which Nicholson fell was built by the State in 1938 and 1939. Although an agreement between Danville and the State was entered into on May 10, 1977, providing that Danville was to be responsible for improvements past the outer edges of the Dixie Highway thru-traffic lanes, this agreement did not, in Rinehart's view, apply in any way to the area in front of the Dixie Drive In.

On cross-examination by Danville's counsel, Rinehart stated that to the best of his knowledge, the city engineer's and mayor's signatures on driveway permits for portions of State highways within municipal boundaries do not place any responsibility on the municipality regarding maintenance or control of the stretch of road on which the driveway is located. Also, Rinehart reiterated that there was no agreement between Danville and the State regarding maintenance of the sidewalk where Nicholson's fall ...


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