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09/14/89 Edward Goebig, Sr., Et Al. v. the City of Chicago

September 14, 1989

OF EDWARD GOEBIG, JR., DECEASED, AND INDIV., PLAINTIFFS-APPELLANTS

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

EDWARD GOEBIG, SR., et al., as Special Adm'rs of the Estate

544 N.E.2d 1114, 188 Ill. App. 3d 614, 136 Ill. Dec. 339 1989.IL.1418

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

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. JIGANTI, P.J., and McMORROW, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Plaintiffs, Edward Goebig, Sr., and Sharon Goebig, special administrators of the estate of Edward Goebig, Jr., appeal from the judgment and order of the circuit court of Cook County that granted the motion to dismiss of defendant, the City of Chicago, pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (hereinafter the Act) (Ill. Rev. Stat. 1985, ch. 85, par. 1-101 et seq.). The sole issue for our review is whether the City owed a duty to plaintiffs' decedent.

We affirm.

The City provided school crossing guard service at 67th Street and Kenneth Avenue. The decedent, a minor, normally crossed at this intersection on his way to school. However, on February 28, 1985, there was no crossing guard at the location; therefore, he crossed at 67th and Keeler, where a traffic light was situated. While crossing the street he was fatally struck by a vehicle.

Plaintiffs filed a personal injury action against the driver of the vehicle, the Catholic Bishop of Chicago, and the City. The actions against the former two were voluntarily dismissed by plaintiffs. The City moved to dismiss the complaint under section 2-619 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-619.) Based on the Act, the court granted the motion to dismiss. This appeal followed.

Plaintiffs' sole contention is that the City owed a duty to the decedent. Plaintiffs argue that the City voluntarily provided crossing guard service and in undertaking this duty it must perform it in a reasonably safe manner. In this instance, plaintiffs claim the City is liable because it failed to provide crossing guard service in a reasonably safe manner. Plaintiffs further argue that section 4-102 of the Act (Ill. Rev. Stat. 1985, ch. 85, par. 4-102) only applies to the police department and crossing guards are not a part of the police department.

Initially we note that we concur with the trial court's finding that the crossing guard service is a part of police service; therefore, section 4--102 is applicable.

"A municipality is not an insurer of the safety of pedestrians against all accidents occurring on its property [citation] . . .." (Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 830.) The liability of a municipality is governed by the Act. Specifically, a municipality is not liable for failing to provide police protection. (Barth v. Chicago Board of Education (1986), 141 Ill. App. 3d 266, 277.) With reference to police protection, the Act provides:

"Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes ...


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