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10/19/95 GREGORY L. SISK v. WILLIAMSON COUNTY

October 19, 1995

GREGORY L. SISK, APPELLEE,
v.
WILLIAMSON COUNTY, APPELLANT.



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Williamson County, the Hon. William H. Wilson, Judge, presiding.

The Honorable Justice McMORROW delivered the opinion of the court:

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

Plaintiff, Gregory Sisk, filed a negligence action in the circuit court of Williamson County against defendant, Williamson County, seeking to recover damages for personal injuries sustained when he fell from a bridge on a country road to the creek bed below. Defendant filed a motion to strike and dismiss plaintiff's complaint for failure to state a cause of action pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)). The trial court found that defendant owed no duty to plaintiff and granted defendant's motion. The appellate court reversed, holding that municipalities have a duty to exercise reasonable care to maintain their rural country roads in a reasonably safe condition for use by pedestrians. (261 Ill. App. 3d 49.) We granted Williamson County's petition for leave to appeal (145 Ill. 2d R. 315). The correctness of the trial court's allowance of defendant's motion to dismiss depends upon whether a duty of reasonable care may be imposed on Williamson County to keep its rural country roads free from defects which may cause injuries to pedestrians. We decline to impose such a duty.

Plaintiff's amended complaint alleges that after dark on September 30, 1989, he was driving an automobile on the Williamson County/Franklin County line road in Williamson County, when his car inadvertently struck a concrete bridge which crossed a creek. After the collision, plaintiff exited the automobile to examine the vehicle for damage. At that time he fell from the bridge to the creek bed below, sustaining injuries. Plaintiff's complaint alleged that "weeds which had grown in and around the aforesaid concrete bridge structure and the right-of-way of the roadway, visually obscured the edge of the aforesaid roadway, right-of-way associated therewith and the creekbed below." The complaint further alleged that the defendant, Williamson County, had negligently failed to properly maintain the "right-of-way of the roadway and the aforesaid concrete bridge by failing to cut, mow or otherwise remove weeds which had grown in and around the concrete bridge structure." We consider the bridge a part of the roadway for purposes of the legal issue of whether the municipality owed plaintiff a duty. See 605 ILCS 5/2-202 (West 1992) (Illinois Highway Code).

We accept all well-pleaded facts in plaintiff's complaint as true. ( Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 98 Ill. Dec. 1, 493 N.E.2d 1022. "In order to state a cause of action in negligence, plaintiff must plead sufficient facts to establish that defendant owed plaintiff a duty of care, a breach of that duty, and an injury proximately caused by that breach." ( Vaughn v. City of West Frankfort (1995), 166 Ill. 2d 155, 157-58, 209 Ill. Dec. 667, 651 N.E.2d 1115; Curtis v. County of Cook (1983), 98 Ill. 2d 158, 162, 74 Ill. Dec. 614, 456 N.E.2d 116.) Whether defendant owed plaintiff a duty of care is a question of law for the court to decide. Marshall v. City of Centralia (1991), 143 Ill. 2d 1, 6, 155 Ill. Dec. 802, 570 N.E.2d 315; Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, 437-38, 152 Ill. Dec. 552, 566 N.E.2d 239.

A municipality's duty to maintain its property is limited by section 3-102 of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/3-102 (West 1992)). ( Vaughn, 166 Ill. 2d at 158.) Section 3-102(a) states in pertinent part:

"(a) 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 of ordinary 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 ***." (745 ILCS 10/3-102(a) (West 1992).)

While keeping in mind that the Act "is in derogation of the common law" and must be strictly construed against the local government entity, we must determine whether plaintiff in the case at bar was an "intended and permitted" user of the rural road under section 3-102(a) of the Act. Curatola v. Village of Niles (1993), 154 Ill. 2d 201, 207-08, 181 Ill. Dec. 631, 608 N.E.2d 882.

As recently stated by this court, the general rule in Illinois is that because pedestrians are not intended users of streets, a municipality does not owe a duty of reasonable care to pedestrians who walk in a street outside the crosswalks. Vaughn, 166 Ill. 2d at 158; Curatola, 154 Ill. 2d at 208; see Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 170 Ill. Dec. 418, 592 N.E.2d 1098 (plaintiff struck by automobile while crossing highway outside of crosswalk); Scarse v. City of Chicago (1995), 272 Ill. App. 3d 903, 906, 209 Ill. Dec. 512, 651 N.E.2d 690 (plaintiff fell over edge of street excavation while exiting a taxi midblock); Gabriel v. City of Edwardsville (1992), 237 Ill. App. 3d 649, 178 Ill. Dec. 309, 604 N.E.2d 565 (plaintiff tripped over water main cover in city street); Ramirez v. City of Chicago (1991), 212 Ill. App. 3d 751, 156 Ill. Dec. 842, 571 N.E.2d 822 (plaintiff injured while sweeping the curb portion of the street); Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 104 Ill. Dec. 94, 502 N.E.2d 357 (plaintiff struck by bus while crossing the street in the middle of the block); Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590 (plaintiff struck by automobile while walking along roadway commonly used by pedestrians).

Plaintiff in the case at bar contends that we should recognize an exception to the general rule and hold that pedestrians are intended and permitted users of rural country roads. Plaintiff cites, and the appellate court relied upon, the Illinois Vehicle Code to support his assertion that he was a permitted and intended user of the roadway and bridge. Section 11-1007 of the Vehicle Code (625 ILCS 5/11-1007 (West 1992)) states:

"(a) Where a sidewalk is provided and its use is practicable, it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.

(b) Where a sidewalk is not available, any pedestrian walking along and upon a highway shall walk only on a shoulder, as far as practicable from the edge of the roadway.

(c) Where neither a sidewalk nor a shoulder is available, any pedestrian walking along and upon a highway shall walk as near as practicable to an outside edge of a roadway, and, if on a two-way roadway, shall walk only on the ...


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