APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
Plaza Associates, an Illinois Limited Partnership, and Glen
Kerslake, Counterdefendants, and Village of Park Forest,
Counterdefendant-Appellee; Christopher Predny, a minor, by
Nos. 85-2952, 86-797 (Consolidated)
518 N.E.2d 1243, 164 Ill. App. 3d 688 1988.IL.61
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY, HONORABLE WILLIAM R. QUINLAN, JUDGE PRESIDING, HONORABLE BRIAN L. CROWE, JUDGE PRESIDING.
Justice Murray,, Lorenz and Pincham, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
This is a consolidated appeal by some of the parties from orders of two trials courts in a negligence action. The action arose out of an August 19, 1981, occurrence, when eleven-year-old Christopher Predny (plaintiff) was severely and permanently injured while riding his bicycle down a concrete path leading into a service driveway of a shopping center located in Park Forest, Illinois. The intersection of the bicycle path and service driveway was lined with a row of lilac bushes which prevented a clear view of the intersection. A delivery truck, owned by ITT Continental Baking Company Continental Baking Company and driven by Louis Sherman (defendants-counterplaintiffs), struck the boy's bicycle as it entered the service driveway. Plaintiff is now a quadriplegic. Plaintiff brought a negligence action against ITT and Sherman, and also against the shopping center owners and the village of Park Forest (village) for negligence to maintain, control, and to obviate the unnecessarily dangerous condition of the area surrounding the intersection and to fail to warn bicyclists and motorists of the dangerous condition. ITT/Sherman filed a counterclaim against the village and shopping center
owners for contribution. Thereafter, the village filed a summary judgment motion which the trial court granted on September 21, 1983. In its motion, the village asserted that it owed no duty to plaintiff because the accident occurred on private property and submitted a plat survey of the area that was made two years after the accident and subsequent to a cutting back of the bushes by the village police chief, acting on his own initiative after plaintiff's accident. The village also documentated that the intersection and the bicycle path for a distance of 10 feet therefrom were privately owned and that the lilac bushes were planted on private property and had not been planted by the village.
In opposition to the summary judgment motion, plaintiff submitted a survey plat prepared before the accident which showed that the village owned much of the land immediately adjacent to the intersection including a drainage ditch and the majority of the bicycle path. Both plats indicated that the village owns property up to approximately 7 1/2 feet from the curb of the driveway. Plaintiff asserts that this is significant because the police officer investigating the accident measured the width of the bushes and found them to extend 11.4 feet west of the curb, thus placing 3.9 feet of bushes over land owned by the village. Plaintiff also submitted evidence that the village was the first wholly designed and planned village in Illinois and that the village had required the shopping center developer to plant the bushes in order to provide a screen between the center and nearby homes.
Plaintiff also demonstrated that the village required placement of the bicycle path next to the bushes and that village employees often inspected and/or maintained the area surrounding the drainage ditch. The assistant superintendent for the village testified that when he had worked as a maintenance man, he reported the bush obstruction and at least once, trimmed the bushes upon his supervisor's order. Subsequently, he again reported the obstruction but was told that the bushes were not on village property. He further stated that he had installed the ramp connecting the path and service driveway for the village. Another employee, who was the village planner between 1969 and 1982, stated in his deposition that village employees had been instructed to give notice of sight obstructions and that he realized the bushes obstructed the view when he used the bicycle path but he never notified anyone.
The village police chief stated that he examined the area after plaintiff's accident and determined that an adult person could not see traffic until after stepping into the driveway. His investigation showed that there had been two accidents prior to plaintiff's at that location -- both of which involved bicyclists being struck by motorists on the service driveway. Both accident reports indicated the presence of heavy bushes and one reported mentioned obstruction of the path by the bushes. The police officers investigating the prior accidents testified that the bushes were on obstruction but that neither officer reported that fact to superiors.
After hearing oral arguments, on December 21, 1983, the trial court granted summary judgment for the village, dismissing it as a party defendant, after finding that as a matter of law the village owed no duty to plaintiff. This order was not made final and appealable. Afterwards, plaintiff timely moved to vacate the summary judgment and requested leave to file his third amended complaint. Both motions were denied on April 6, 1984. On April 16, the trial court granted the village's motion to dismiss ITT/Sherman's counterclaim for contribution against it and later denied counterclaimant's request to file an amended counterclaim. Neither order was made final and appealable. On a petition for reconsideration, pursuant to a section 2-1401 petition (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401), the court again denied plaintiff and ITT/Sherman their requested relief.
Subsequently, the owners and managers of the shopping center were dismissed as defendants after entering into a structured settlement with plaintiff. A jury trial was held in a court other than the court issuing the above orders. The only defendants remaining at trial time were ...