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06/17/88 Danny A. Di Domenico, v. the Village of Romeoville

June 17, 1988

DANNY A. DI DOMENICO, PLAINTIFF-APPELLANT

v.

THE VILLAGE OF ROMEOVILLE, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

525 N.E.2d 242, 171 Ill. App. 3d 293, 121 Ill. Dec. 436 1988.IL.956

Appeal from the Circuit Court of Will County; the Hon. Thomas M. Ewert, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. BARRY and WOMBACHER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

On May 28, 1985, the automobile of Danny A. Di Domenico, hereinafter referred to as the plaintiff, was lawfully parked parallel to the curb on Garland Street in the Village of Romeoville (Village), hereinafter referred to as the defendant. The plaintiff, while walking on the street to his car for the purpose of obtaining some items from its trunk, fell into a hole and injured himself. The hole was located a few feet from plaintiff's vehicle.

The plaintiff filed a suit for damages against the defendant. The action of the plaintiff was predicated upon his assertion that the defendant Village had the duty to protect pedestrians from injury when walking on the roadways to their lawfully parked vehicles and that the defendant had violated that duty.

After several amendments, the second amended complaint was dismissed with prejudice for failure to state a cause of action. The trial court found that the defendant Village did not owe a duty of care to the plaintiff. This appeal ensued from the order of dismissal.

The pivotal question in this appeal is whether plaintiff's complaint stated a cause of action against the defendant Village.

At the time of plaintiff's accident, there was in force a provision of the Illinois Local Governmental and Governmental Employees Tort Immunity Act which provided as follows:

"Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such condition." Ill. Rev. Stat. 1985, ch. 85, par. 3-102(a).

The defendant argued before the trial court and before this court that the crucial language in the above statutory provision is contained in the words "a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 85, par. 3-102(a).

The trial court, agreeing with the defendant, concluded that it was the defendant Village's intent that the streets, with the exception of crosswalks, should be maintained for the use of vehicular traffic and not for pedestrian use. To agree with such Conclusion would result in a situation where the local entity, the Village, would have the duty to maintain the crosswalks for pedestrians but not the rest of the street. In the instant case the defendant Village permitted curbside parking on Garland Street, so it must have recognized the necessity of pedestrians walking in the street and using a portion of it as a pathway, as means of ingress and egress to and from their vehicles. It is common knowledge that, unless parking is specifically prohibited on a street, the operators of vehicles regularly and customarily, both in business districts and residential areas, park their vehicles either parallel to or at an angle to the curb. It defies common sense to conclude that such local entities did not contemplate and intend that the operator of the vehicle along with passengers would use the street area around the parked vehicle for ingress and egress to and from their vehicle.

The defendant in its motion to dismiss plaintiff's complaint relies heavily on the case of Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590. The factual situation in Deren is quite different from that in the instant case. In Deren the plaintiff was struck by a car as he was walking along the edge of a roadway because the city had not provided a sidewalk for pedestrians. In Deren the plaintiff was using the street as a sidewalk, while in the instant case the plaintiff used the street as a passageway in order to get from his vehicle to the sidewalk. We further note that in Deren it was a car that ...


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