APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
540 N.E.2d 840, 184 Ill. App. 3d 993, 132 Ill. Dec. 918 1989.IL.884
Date Filed: June 13, 1989; As Corrected October 20, 1989.
Appeal from the Circuit Court of Cook County; the Hon. Edwin M. Berman, Judge, presiding.
JUSTICE EGAN* delivered the opinion of the court. HARTMAN and SCARIANO, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN
The plaintiff, Walter Ciochon, sued the defendant, Phillip Bellino, alleging that on September 20, 1983, at approximately 8 p.m., he was struck by the automobile driven by the defendant when the plaintiff was crossing the street near 5700 West Fullerton in Chicago. Bellino brought a third-party action in contribution against the City of Chicago alleging that the City "was in control and responsible for the maintenance of Fullerton Avenue and the adjacent street lights in the area at the time of the accident." It further alleged that the City was negligent in maintaining the streetlights in the following manner: (1) improperly maintaining the lighting; (2) improperly allowing the darkened condition to remain for an unreasonable length of time; (3) failing to repair or replace the lights which the City knew or should have known were out; and (4) failing to warn of the dangerous condition.
The City's answer denied the allegations of the negligence; but the City did not plead that it was immune from liability. Thereafter, the City moved for summary judgment on the ground that section 3-105 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 3-105) (Tort Immunity Act) granted it immunity from suit for the effects of wind and rain on public streets. The motion asserted that the reason that the City did not replace or repair the lights was that it was not an isolated incident but a disruption of current requiring repair by Commonwealth Edison. The City supported its motion with the deposition of Officer Ronald Opasinski of the Chicago police department and the affidavit of Bernard O'Hallaren, an engineer for the City of Chicago Bureau of Electricity.
Officer Opasinski testified that it was raining hard for at least an hour before the accident and there were numerous reports of lights out throughout the police district for about an hour before the accident. He and his partner were just north of the accident site when they were notified of its occurrence; they arrived at the scene within two minutes. He found the plaintiff pedestrian in the street in the middle of the block. The site was dark because of the nightfall, the pouring rain and the absence of lighting. He had no idea how long the lights had been out at that particular location or why they were not functioning. He observed that the lights were out for several blocks in either direction as well. Officer Opasinski reported that the lights were out to the police radio dispatcher, but he did not know whether the dispatcher notified anyone else. He also wrote in his police report that "the street light at this location [was] burned out," meaning that the lights were out for the entire block. He did not know whether there had been any prior reports about lights being out at the scene.
In his affidavit, the sufficiency of which will be discussed later in this opinion, O'Hallaren stated that the Bureau of Electricity had not received any reports of lights being out in the 5700 block of West Fullerton during a two-year period which included the date of the accident.
The third-party plaintiff moved to strike the motion for summary judgment on several grounds: the O'Hallaren affidavit did not comply with Supreme Court Rule 191 (87 Ill. 2d R. 191); the third-party defendant City could not rely on section 3 -- 105 because it did not raise the statute in the City's pleadings; the City, in its answer, already admitted ownership and control of the streets and the adjacent lights; and Opasinski's report showed that the City, through its agent, Opasinski, had received notice that the streetlights were out and did nothing to remedy the problem. The trial court granted the motion to strike only as to one paragraph of the O'Hallaren affidavit, which stated that Commonwealth Edison, not the City, was responsible for repairing the outage and restoring service. The court then granted the City's motion for summary judgment. Since no report of proceedings is part of the record, we are unable to determine the basis for the court's ruling.
In order for the third-party defendant City to be held liable in contribution to the third-party plaintiff, it must be shown that the City is "subject to liability in tort" to the plaintiff. (Ill. Rev. Stat. 1983, ch. 70, par. 302(a).) The City contends that it owed no duty to the plaintiff pedestrian and, therefore, no cause of action in contribution could lie.
The question of whether a duty exists is one of law for the court to decide and may be resolved on summary judgment. (Barnes v. Washington (1973), 56 Ill. 2d 22, 305 N.E.2d 535; Eddings v. Dundee Township Highway Commissioner (1985), 135 Ill. App. 3d 190, 478 N.E.2d 888.) Summary judgment is appropriate only where the pleadings, depositions, admissions on file and affidavits present no genuine issue of material fact. Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.
The third-party plaintiff asserts that the City owed the pedestrian plaintiff a duty to maintain the streetlights in a functioning condition and to warn if they were not operating properly. Generally, under section 3-102 of the Tort Immunity Act, a local public entity such as the City owes the duty of ordinary care in maintaining its property. (Ill. Rev. Stat. 1983, ch. 85, par. 3-102.) Section 3-105, upon which the City relies, creates an exception and grants immunity where the injury is "caused by the effect on the use of streets . . . of weather conditions as such." (Ill. Rev. Stat. 1983, ch. 85, par. 3-105.) However, there is no immunity where the condition was the result of "physical damage to or deterioration of streets" (Ill. Rev. Stat. 1983, ch. 85, par. 3-105), provided that the local public entity has "actual or constructive notice ...