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04/22/94 JOHN GILMORE AND KATHLEEN M. GILMORE v.

April 22, 1994

JOHN GILMORE AND KATHLEEN M. GILMORE, PLAINTIFFS-APPELLANTS,
v.
STANMAR, INCORPORATED, A FOREIGN CORPORATION, AND SAFWAY STEEL PRODUCTS, A CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. The Honorable Stephen A. Schiller, Judge Presiding.

Rehearing Denied May 24, 1994. Released for Publication June 7, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Egan, McNAMARA, Giannis

The opinion of the court was delivered by: Egan

PRESIDING JUSTICE EGAN delivered the opinion of the court:

The plaintiffs, John Gilmore (John) and his wife, Kathleen Gilmore (Kathleen), appeal from an order granting certain defendants' motion to dismiss counts three, four, five and six of their complaint pursuant to section 2-615 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, sec 2-615.) John sued for personal injuries and Kathleen sued for loss of consortium. The defendants involved in this appeal are Stanmar, Inc. (Stanmar) and Safway Steel Products (Safway). Counts three and four allege negligence, counts five and six allege violation of a statute and common law nuisance.

The allegations of the complaint, which must be taken as true at this juncture, are as follows: John was driving southbound on Wells Street in Chicago on November 22, 1989, when he collided with a police car driven by Chicago Police Officer John Reed. Reed was driving eastbound on Walton Street; he intended to turn left onto Wells street and drive north. Reed entered the intersection of Wells and Walton Streets knowing that his vision of the southbound lanes of traffic along Wells Street was partially obscured. There is a stop sign on Walton Street where it intersects with Wells Street; Reed failed to obey this stop sign. Reed and John collided in the intersection of Wells and Walton Streets. John suffered serious injuries and is a quadrapalegic as a result of the accident.

Stanmar and Safway owned and were in charge of the erection, construction and repairs of a pedestrian canopy located alongside and abutting the sidewalk along the west side of Wells Street between Walton Street to the south and Oak Street to the north. Stanmar and Safway maintained and checked the progress of the construction work involving the canopy and had the authority to stop the work in the event the work was being performed in a dangerous manner. The canopy was 9 feet, 8 inches high and extended 6.1 feet into the southbound lane of Wells Street. The canopy was located 81 feet north of the center of Walton Street.

The canopy interfered with the use by motorists of Walton and Wells Street by obstructing motorists' movement on the highways because it partially obscured their vision ahead and of the southbound traffic on Wells Street and of the eastbound traffic on Walton Street. Count three alleged that the canopy intruded over six feet into the southbound lanes of traffic on Wells Street, thereby preventing John from taking evasive action and swerving his vehicle to the right to avoid the collision with another vehicle. Count four was Kathleen's loss of consortium.

Count five involved John's claim for injuries and asserted that the design, erection, construction and placement of the canopy constituted a significant and unreasonable interference with public safety and the common public right to use the highway and thereby constituted a public nuisance. The count concluded that the design, construction and maintenance of the canopy violated section 9-117 of the Illinois Highway Act (Ill. Rev. Stat. 1985, ch. 121, sec. 9-117), and thereby constituted a public nuisance. As a proximate result of the improper use of the canopy, John's motor vehicle collided with the motor vehicle operated by Reed, in part because the canopy's intrusion into the southbound lanes of traffic along Wells Street deprived John of the opportunity to take evasive action and swerve to the right and avoid the collision with another vehicle. Count six involved Kathleen's loss of consortium and repeated the allegations of count five.

Safway filed motions under sections 2-615 and 2-619 of the Code of Civil Procedure to dismiss the complaint. Stanmar later joined in both motions. Safway attached a City of Chicago "Construction Authorization and Inspection" form for the canopy to its section 2-615 motion. Safway and Stanmar argued that this "permit" expressly allowed the canopy placement and construction. The section 2-619 motion contained several exhibits, including the permit. Judge Thomas Hoffman allowed the plaintiffs' motion to strike the permit from the section 2-615 motion and stayed his decision regarding the section 2-619 motion until after a hearing had been conducted on the section 2-615 motion.

Judge Steven Schiller heard the defendant's section 2-615 motion. He held that the complaint failed to allege facts which would support a finding that the injuries suffered by John were proximately caused by any acts of negligence on the part of the defendants.

The rules governing motions to dismiss complaints have been repeated so often citation is unnecessary: The court must determine the legal sufficiency of a complaint taking as true all well-pleaded facts and the inferences to be drawn from those facts. Pleadings are to be liberally construed and a pleader is not required to set out his evidence but only the ultimate facts to be proved. A pleading may not be dismissed unless it clearly appears that no set of facts can be proved which will entitle the plaintiffs to recover.

A section 2-615 motion attacks only the legal sufficiency of the complaint on its face. Affirmative matter outside the face of the complaint may not be asserted in a section 2-615 motion. ( Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 440 N.E.2d 942, 65 Ill. Dec. 87.) For that reason, Judge Hoffman properly struck the permit from the defendants' section 2-615 motion. We reject the defendants attempt to rely on the permit and other affirmative matters in this court to sustain the order dismissing pursuant to section 2-615.

Counts three and four involve a general negligence claim. To state a cause of action for negligence, a complaint must "allege facts sufficient to show the existence of a duty, a breach of that duty, and injury to the plaintiff which is proximately caused by that breach." ( Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 542, 582 N.E.2d 108, 163 Ill. Dec. 842.) We disagree with the plaintiffs' contention that the only issue before us is whether the complaint properly pleaded proximate cause. We agree with the defendants that, although the Judge based his decision on proximate cause, we ...


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