APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE PADDY H. MCNAMARA, JUDGE PRESIDING.
Released for Publication April 24, 1997.
The Honorable Justice Hoffman delivered the opinion of the court. Hartman, P.j., and Hourihane, J., concur.
The opinion of the court was delivered by: Hoffman
JUSTICE HOFFMAN delivered the opinion of the court:
The plaintiff, Maria De Jesus Adame, initiated this negligence action on behalf of the minor plaintiff, Juan Adame, and against the defendants, Sergio Munoz, Chicago Title & Trust Co., the City of Rolling Meadows, and Murray Weinberg, for injuries sustained by Juan when the bicycle he was riding collided with a vehicle driven by Munoz. The trial court dismissed the plaintiff's second amended complaint against the City of Rolling Meadows based upon the Tort Immunity Act (745 ILCS 10/2-105, 10/3-104 (West 1994)). The trial court also dismissed the action as to Weinberg, and it is from this order that the plaintiff appeals. For the reasons which follow, we affirm.
The allegations in the second amended complaint state that, on or about May 2, 1994, at approximately 7 p.m., Juan was riding a bicycle at or near a cul-de-sac or parking lot at the East Park Apartments, located along the 4900 block of Algonquin Parkway in Rolling Meadows. At the same time, defendant Munoz was driving an automobile northbound on Algonquin Parkway at or near the intersection of that road with the cul-de-sac or parking lot in which Juan was riding his bicycle. The plaintiff alleges that Weinberg owned, operated, and controlled the East Park Apartments as well as the cul-de-sac and parking lot adjacent thereto. According to the plaintiff, Weinberg placed, or permitted to remain, on the sidewalk, cul-de-sac, or parking lot at East Park Apartments certain trash dumpsters which obstructed the view of bicyclists, motorists, and others in the vicinity of the intersection of Algonquin Parkway and the cul-de-sac or parking lot. As a result of Weinberg's placement of the dumpsters and his failure to warn of the condition, Juan was struck and severely injured by the vehicle driven by Munoz.
The trial court dismissed the second amended complaint as to Weinberg pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 1994)). The plaintiff's motion to reconsider was denied, and this appeal followed.
It is well settled that, on review of an order of dismissal under section 2-615 of the Code, this court must determine the legal sufficiency of the complaint taking as true all well-pleaded facts. Gilmore v. Stanmar, Inc., 261 Ill. App. 3d 651, 654, 633 N.E.2d 985, 199 Ill. Dec. 189 (1994). Pleadings are to be liberally construed, and we must draw all reasonable inferences from those facts which are favorable to the plaintiff. Gilmore, 261 Ill. App. 3d at 654. Actions should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. Gilmore, 261 Ill. App. 3d at 654.
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., 144 Ill. 2d 535, 542, 582 N.E.2d 108, 163 Ill. Dec. 842 (1991). Whether a duty exists is a question of law, and depends upon whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. Ziemba v. Mierzwa, 142 Ill. 2d 42, 47, 566 N.E.2d 1365, 153 Ill. Dec. 259 (1991). In order to determine whether a duty exists in a particular case, a court must weigh the foreseeability that the defendant's conduct will result in injury to another and the likelihood of an injury occurring, against the burden to the defendant of imposing a duty, and the consequences of imposing this burden. Ziemba, 142 Ill. 2d at 47.
The plaintiff argues on appeal that she adequately stated a negligence cause of action against Weinberg based upon the duty of a property owner as expressed in section 364 of the Restatement (Second) of Torts. Section 364, titled "Creation or Maintenance of Dangerous Artificial Conditions," states:
"A possessor of land is subject to liability to others outside of the land for physical harm caused by a structure or other artificial condition on the land, which the possessor realizes or should realize will involve an unreasonable risk of such harm, if
(a) the possessor has created the condition, or
(b) the condition is created by a third person with the possessor's consent or acquiescence while the land is in his possession, or
(c) the condition is created by a third person without the possessor's consent or acquiescence, but reasonable care is not taken to make the condition safe after the possessor knows or should know of ...