APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 92 L 10533. THE HONORABLE KATHY M. FLANAGAN, JUDGE PRESIDING.
The Honorable Justice Cousins delivered the opinion of the court: McNULTY, P.j., and Gordon, J., concur.
The opinion of the court was delivered by: Cousins
JUSTICE COUSINS delivered the opinion of the court:
The plaintiff, Edward Hough, as special administrator of the estate of Tina Marie Hough, deceased, sued the defendants, Christopher Kalousek and Village of Oak Lawn, alleging that their negligence had caused the death of decedent from a car accident while she was standing on a street. Count I of plaintiff's complaint alleged that Mr. Kalousek failed to exercise reasonable care when driving his vehicle, and count II alleged that Oak Lawn failed to adequately maintain the streetlights where the accident occurred. Mr. Kalousek filed a cross-claim against Oak Lawn for contribution. Oak Lawn moved to dismiss count II pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)), and the trial court granted the motion on two grounds: (1) Oak Lawn had no duty to protect a pedestrian on its street who was not an intended user of the street, and (2) Oak Lawn's actions were not the proximate cause of the accident, but had merely created a condition where the accident could occur. Plaintiff and Mr. Kalousek have both filed separate appeals of the court's decision. Plaintiff also asked the trial court, in the alternative, to grant a protective order against Mr. Kalousek which would prevent Mr. Kalousek from making any reference to inadequate lighting at trial. The trial court denied this motion, from which plaintiff has also appealed.
On July 26, 1992, Tina Hough was a pedestrian on 95th Street in Oak Lawn, standing at approximately 5400 West. Mr. Kalousek was driving his car down 95th Street and collided with Ms. Hough at 1:30 a.m., killing her in the collision.
Plaintiff filed his complaint on August 25, 1992, and his fourth amended complaint on July 18, 1994. That complaint contained two counts. Count I alleged that Mr. Kalousek had negligently operated his vehicle, resulting in the accident as decedent stood on 95th Street. Count II alleged negligence by Oak Lawn resulted in the accident and that Oak Lawn had been negligent in one or more of the following ways when it:
"a. Turned off every second street light on both sides of West 95th Street at approximately 5400 West in Oak Lawn, Illinois after 1:00 a.m. after having actual notice that 121 collisions involving motor vehicles had taken place ***;
b. Failed to warn motorists and/or pedestrians that every other street light would be turned off after 1:00 a.m. ***;
c. Failed to adequately investigate and study the accident history ***;
d. Failed to adequately maintain the lighting on West 95th Street ***;
e. Created an unsafe and hazardous situation by turning off every other light on West 95th Street;
f. Failed to comply with standards of the Illuminating Engineering Society of North America by failing to maintain average ...