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02/01/89 Linda Brannock, v. the City of Chicago

February 1, 1989

LINDA BRANNOCK, PLAINTIFF-APPELLANT

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

534 N.E.2d 529, 179 Ill. App. 3d 145, 128 Ill. Dec. 347 1989.IL.104

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. FREEMAN, P.J., and McNAMARA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

Plaintiff Linda Brannock appeals from an order of the circuit court granting a motion for summary judgment filed by defendant, the City of Chicago. Plaintiff argues that a genuine issue of material fact existed and, therefore, the court erred in granting the city's motion.

Plaintiff was injured when the motorcycle on which she was a passenger struck a barrier curb located at 3800 north on Lake Shore Drive in Chicago. Plaintiff filed suit against the city alleging that it had carelessly and negligently designed, constructed, and maintained the portion of Lake Shore Drive where the accident occurred.

The city filed a motion for summary judgment alleging that it was not responsible for the design, construction, or improvement of the portion of Lake Shore Drive in question; that Lake Shore Drive was constructed by the State of Illinois; and that the city's sole responsibility with respect to that portion of Lake Shore Drive was the performance of routine surface repairs to the roadway and median. In support of its motion for summary judgment, the city presented the affidavit of Richard Callbeck, deputy commissioner of the bureau of streets, department of streets and sanitation. Callbeck stated that he had personal knowledge of the relevant records and that if called as a witness he would testify that Lake Shore Drive is an extension of the State highway system and that the city was not responsible for the construction, design, or improvement of the portion of the roadway in question. Callbeck also stated that the city and the State had entered into a maintenance agreement under which the city was responsible for performing routine maintenance, such as surface and pothole repairs, and that this was the city's sole responsibility with respect to the roadway. Attached to Callbeck's affidavit was a copy of the 1984-85 maintenance agreement between the city and the State. Also attached was a State of Illinois, Department of Transportation, computation sheet. However, the computation sheet did not refer to the portion of Lake Shore Drive in question.

In response, plaintiff filed a pleading entitled "Plaintiff's Motion to Strike Defendant's Motion for Summary Judgment," in which she alleged that the records attached to Callbeck's affidavit were not sworn or certified; that the records made no reference to who was responsible for constructing, designing, or improving Lake Shore Drive; and that they made no reference to the 3800 block of North Lake Shore Drive.

Subsequently, the city sought leave to file an amended motion for summary judgment. This motion was identical to the city's original motion except that the computation sheet attached to the original motion was replaced by one referring to the correct portion of Lake Shore Drive. The court granted the city leave to file the amended motion at a hearing held on October 16, 1987. At that same hearing, the court ordered that plaintiff's motion to strike be addressed to the city's amended motion and set a hearing for November 13, 1987. On that date, both the city's motion for summary judgment and plaintiff's motion to strike were continued until December 22, 1987. At the December 22 hearing, the court denied plaintiff's motion to strike and entered summary judgment for the city. Plaintiff appeals.

Plaintiff contends that the trial court erred in entering summary judgment for the city because the city's motion and its attachments did not resolve all issues of material fact concerning the city's responsibility for the portion of the roadway in question. Citing the Illinois Supreme Court's decision in Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 404 N.E.2d 213, plaintiff argues that because the city's motion failed to show any acts by the State divesting the city of jurisdiction over the property, summary judgment was improper.

In Janssen, a motorcyclist was injured when he struck a traffic island while travelling on a State-owned street. The island was located immediately south of the intersection of Standford Avenue, which marked the southern boundary of the city of Springfield, and Fifth Street, which was owned by the State. Janssen filed suit against the City of Springfield, alleging that the city was negligent in failing to remove the traffic island and in failing to warn motorists of the hazard. In an appeal filed by the city following a judgment for Janssen, the supreme court held that because the State planned, constructed, and maintained the traffic island, the trial court erred in refusing to direct a verdict for the city on the count alleging that the city was negligent in failing to remove the island. However, the court also noted that the city had control over Fifth Street north of the intersection of Standford and Fifth, that the traffic island was located just a few feet south of the city-controlled portion of Fifth Street, and that the island blocked the continuation of the outer part of Fifth Street and thus presented a hazard to motorists using the city-controlled part of the street. Therefore, the court found that the city had a duty to warn motorists of the island since it constituted a hazard incidental to that portion of the roadway still under the city's control.

In the present case, plaintiff argues that the city failed to produce evidence sufficient to establish that the portion of Lake Shore Drive in question was under the State's control. Plaintiff further argues that even if the State was in control of the roadway, the city might have owned adjacent property and thus owed a duty under Janssen to warn of the alleged hazard. This argument is without merit.

In Janssen, the traffic island that constituted the hazard was located immediately to the south of a city-controlled street and it was clear that motorists using the city-controlled portion of Fifth Street would encounter the hazard if they continued past Standford Avenue, the southern boundary of the city. Therefore, the supreme court ruled that the city had a duty to warn of the hazard. In Predny v. Village of Park Forest (1988), 164 Ill. App. 3d 688, 518 N.E.2d 1243, another case relied upon by plaintiff, a 10-year-old boy was severely injured when he was struck by a truck while riding his bike on a Park Forest bike path. The accident occurred at the intersection of the bike path and a shopping center driveway where the path was lined with lilac bushes, which prevented a clear view of the driveway. Summary judgment was entered for the village after it produced evidence that it did not own the property on which the accident occurred. In reversing the trial court, the appellate court pointed out that although the village did not own the intersection where the accident occurred, it owned all of the bike path except the 7 1/2 feet before the intersection, that the village had required the lilac bushes to be planted, that the ...


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