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03/31/94 RUBY ROBERSON v. CITY CHICAGO

March 31, 1994

RUBY ROBERSON, PLAINTIFF-APPELLANT,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Sidney A. Jones III, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Theis, Cahill, Johnson

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

Ruby Roberson filed a complaint against the City of Chicago after she sustained injuries when she stepped into a hole located on a median strip. The City moved for summary judgment. (Ill. Rev. Stat. 1989, ch. 110, par. 2-1005.) On August 25, 1992, the trial court granted the City's motion for summary judgment. Roberson appeals this decision and we now affirm.

At the time of the accident, Roberson was employed at the Desi Hair Salon located at 2134 West 95th Street. Running in an east-west direction, 95th Street has four lanes of traffic. From pictures made part of the record, it is clear that a parking lane is on the south side of the street. At this part of 95th Street, eastbound and westbound traffic is divided by a median strip, which is planted with grass, trees and flowers.

At about 10:00 in the morning on July 18, 1990, Roberson parked her car in front of 2135 West 95th Street, located on the south side of the street. The car was parked almost directly across the street from the Desi Hair Salon, and was about 50 feet from the intersection. To get to her place of employment, Roberson crossed 95th Street and stepped onto the median strip. During a deposition which she gave in connection with this case, Roberson explained that she did not walk to the intersection and cross at the crosswalk because there was a traffic jam at the corner. As she stepped onto the median strip, Roberson's leg went into a hole that Roberson estimated was approximately six inches wide and four feet deep. Her leg was cut by something jagged in the hole and the injury required six stitches.

The parties agree that the City of Chicago was responsible for maintaining this median strip. The record reflects that the City hadentered into a contract with the Illinois Department of Transportation by which the City agreed to maintain certain portions of certain streets. According to both of the parties, this portion of 95th Street was covered by the maintenance agreement.

Roberson filed a complaint against the City of Chicago, charging the City was negligent and seeking $15,000 in damages. The City filed a motion for summary judgment and on August 25, 1992, the trial court granted the motion. Roberson appeals this decision, raising two issues for our consideration: (1) whether the trial court erred in determining that Roberson was not an intended and permitted user of the area in question; and (2) whether a duty arises on the part of the City of Chicago because it was under a contractual obligation to maintain the median strip. We now affirm the decision of the trial court.

This case was disposed of on a motion for summary judgment. Summary judgment is proper only where the pleadings, affidavits and depositions on record raise no genuine issue of material fact. (Ill. Rev. Stat. 1989, ch. 110, par. 2-1005.) Therefore, summary judgment is only proper if an issue can be resolved as a matter of law.

In her complaint, Roberson charged that the City was negligent in maintaining the median strip. To properly allege that another party has been negligent, a plaintiff must assert that the defendant owed a duty of care to this party, the defendant breached that duty of care and the plaintiff's injury was a consequent result of that breach. ( Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 421, 592 N.E.2d 1098, 1100; Curtis v. County of Cook (1983), 98 Ill. 2d 158, 162, 456 N.E.2d 116, 118.) "Whether or not the duty of care exists is a question of law to be determined by the court." ( Wojdyla, 148 Ill. 2d at 421, 592 N.E.2d at 1100.) Therefore, on this summary judgment motion, we can properly consider whether a duty existed on the part of the City when Roberson was injured after stepping onto a median strip.

In determining whether a duty is owed to Roberson, we turn to the first issue raised in this appeal, namely whether Roberson was an intended and permitted user of this median strip. The Local Governmental and Governmental Employees Tort Immunity Act directs that the City only owes a duty to exercise reasonable care if Roberson was an intended and permitted user of the property. Section 3-102(a) of the Act reads 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 ofordinary 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 reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition." Ill. Rev. Stat. 1989, ch. 85, par. 3-102 (a).

We first consider whether Roberson was an intended user of this median strip. To "intend" has been defined in this context as "'to have in mind as a specific purpose or goal.'" ( Ramirez v. City of Chicago (1991), 212 Ill. App. 3d 751, 756, 571 N.E.2d 822, 826.) In analyzing this case, then, we must examine the purpose of this ...


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