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September 8, 1994


Appeal from the Circuit Court of Cook County. Honorable Kathy M. Flanagan, Judge Presiding.

Released for Publication October 14, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Theis, Hoffman, Johnson

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

We are called upon to determine whether the actions of City officials and an electric company in turning off the power line that supplied local traffic signals and street lighting created a condition or a proximate cause of an intersectional automobile collision. We conclude that these actions created a condition, and we affirm the grant of summary judgment in favor of the City and the electric company.

This bizarre sequence of events began at approximately 9:30 p.m. on August 21, 1990, when defendant James Lewis, who had recently been fired by Commonwealth Edison, climbed up a 34,000-volt power pole in the City of Harvey and threatened to electrocute himself. By 12:30 or 1 a.m., the crowd had grown to about 75 persons, including the chiefs of both the police and fire departments. Lewis eventually agreed to come down from the pole in a Commonwealth Edison lift truck that had been brought to the site.

During the time Lewis was atop the power pole, the Harvey police chief directed Commonwealth Edison to turn off the City's major power line. This power line supplied electricity to many traffic signals and street light systems in Harvey. As a result of the power shutdown, one area left without power to its traffic signals and overhead street lights was the intersection at 147th Street and Halsted, three or four blocks from the site where Lewis had climbed the electrical pole.

At approximately 1 a.m., Michael Cain, then 18, was driving a Jeep CJ-7 with passenger Brian Quirke after the two had attended aconcert in Tinley park. After stopping for pizza, they got lost while trying to return to Interstate 294. Not realizing that they were heading east on 147th Street in Harvey, Cain drove along looking for signs that would lead them back to the expressway. Cain recalled at his deposition that the street was poorly lit and that they drove through areas where the street lights had been "knocked out." Nevertheless, he testified that he could see the roadway in front of him "just fine."

After driving for some three or four miles from the pizza restaurant, Cain noticed that there was no street lighting ahead of the car. As he approached within 100 yards of the intersection at 147th and Halsted, he saw that the traffic control light hanging over the intersection was out. He testified that as he came within 50 yards of the intersection, he slowed down from 25 or 30 miles per hour to 10 or 15 because of the inoperative traffic light.

Cain also testified that the lack of lighting obscured his view ahead on 147th and that the surrounding buildings obstructed his view down Halsted. He did not stop at the intersection because he saw another car proceed through it and because he "wasn't quite up on the rules of the road." At the time he proceeded into the intersection, Cain testified he was traveling 10 miles per hour. In his written answer to an interrogatory about the rate of speed he was driving at the time of the accident, however, Cain responded that he was driving 30 miles per hour.

Cain's jeep collided with a car driven by Denise Miller, who had entered the intersection heading northbound on Halsted. Cain stated that he did not see Miller's vehicle until a "split second" before his vehicle collided into hers. Cain was looking "probably straight ahead right before she hit me." According to Cain, Miller was driving 40 or 45 miles per hour. The impact from the collision caused passenger Brian Quirke to be thrown out the door, which had flown open. The jeep spun around three or four times. Cain was not injured.

Plaintiff Quirke testified that approximately five minutes before the accident, he noticed that their vehicle had moved from an area illuminated by street lighting to an area obscured in relative darkness. Quirke stated that their jeep was traveling 40 to 45 miles per hour at the time. He added that despite the darkened conditions, Cain never slowed down before entering the intersection at 147th and Halsted.

On March 5, 1991, Quirke brought a negligence action against the City of Harvey, Cain, Miller, Commonwealth Edison, and James Lewis for personal injuries sustained in the accident. Miller's insurer filed a subrogation claim against Cain, and that case was consolidatedwith this one on October 29, 1991. The City of Harvey subsequently counterclaimed for contribution against Cain and Commonwealth Edison, and Cain counterclaimed against the City of Harvey and Commonwealth Edison.

On September 15, 1992, Commonwealth Edison moved for summary judgment with respect to Quirke's action and all counterclaims, and the City of Harvey joined the motion. On January 29, 1993, the trial court granted summary judgment in favor of both Commonwealth Edison and the City of Harvey against Quirke and against Cain on Cain's counterclaims. In announcing her ruling, the trial Judge stated that the darkened street and ...

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