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298 Ill.App.3d 797

June 17, 1998


The opinion of the court was delivered by: Justice Cahill

Appeal from the Circuit Court of Cook County

90 L 02454 and 90 L. 14226, Consolidated

Honorable Alfred J. Paul, judge Presiding.

The facts are these: a Chicago fire truck, on the way to a fire, drove onto a raised median strip. The median was under repair and contained empty planter boxes and tree pits. The driver lost control when the wheels of the truck entered the planter boxes and a tree pit. The truck then entered the opposite lane of traffic and hit a car occupied by two young women. The driver of the car, Dovie Knight, was killed and the passenger, Alicia Washington, was injured. Dovie Knight's father and Alicia Washington each sued the City of Chicago (the City). The actions were consolidated. After trial, the jury returned a verdict in favor of John Knight for $1,500,000 and in favor of Alicia Washington for $200,000. The City appeals. We reverse.

At approximately midnight on September 11, 1989, a Chicago firefighter, Patrick Lynch, was driving a Chicago fire department snorkel truck southbound on Halsted Street. The truck, responding to a call, was traveling approximately 35 miles per hour with siren and warning lights activated. At the same time, Dovie Knight was driving her car north on Halsted.

The fire truck went southbound through the intersection of 111th and Halsted, where the light was green, still traveling 35 miles per hour. The parking lane of southbound Halsted was filled with parked cars. Two cars were double-parked in the right-hand southbound travel lane, so only the left-hand southbound lane was clear for traffic.

As the fire truck approached the double-parked cars, the truck swerved to the left, and the wheels on the left side of the truck mounted the median curb. Witnesses disputed whether the driver of the fire truck had been forced to take evasive action because a car had come out of the adjacent alley and blocked the left and only open lane of traffic.

Once on the median, the wheels of the fire truck rolled in and out of the planter boxes and into the tree pit. The truck was then propelled off the median into the oncoming northbound lanes where Dovie Knight's car was facing northbound. The truck struck the driver's side door of Dovie Knight's car.

The jury found the City negligent and awarded damages to the plaintiffs. The City filed a posttrial motion for judgment notwithstanding the verdict or, in the alternative, a new trial. The court denied the motion, finding that it was foreseeable that a fire truck, an emergency vehicle, would drive on a raised median, and that the City has a duty of reasonable care when it installs and maintains planter boxes on medians.

If defendant owes no duty to the plaintiffs, and the evidence establishes that there is no duty, the verdict cannot stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967). We review the denial of a judgment n.o.v. under the Pedrick standard: whether all the evidence, when viewed most favorably to the opponent, so overwhelmingly favors the movant that no contrary verdict could ever stand. Pedrick, 37 Ill. 2d at 510. A judgment notwithstanding the verdict presents a question of law and will be granted only if there is a total failure to prove an essential element of the plaintiff's case. Baier v. Bostitch, 243 Ill. App. 3d 195, 202, 611 N.E.2d 1103 (1993). The threshold issue in this case is whether the City owes a duty to maintain a raised median in such a way as to make it safe for use by emergency vehicles.

We initially note that plaintiffs, throughout their brief, argue that the City not only had a duty to make the median safe, but also to warn of a raised median under repair. As the City's brief points out, the alleged failure to warn was addressed through a motion in limine. The issue was excluded from trial with no objection from the plaintiffs. The jury instruction tendered by the plaintiffs and given to the jury did not raise the issue. The issue is waived. Green v. Union Pacific R.R. Co., 269 Ill. App. 3d 1075, 1087, 647 N.E.2d 1092 (1995). We note, however, that the City owes no duty to warn of obvious dangers and that drivers are presumed to know that leaving the road is dangerous. Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 665 N.E.2d 826 (1996). The City also has absolute immunity from liability based on alleged failures to erect traffic warnings or barricades. See 745 ILCS 10/3-104 (West 1994).

A negligence claim must allege the existence of a duty, breach of that duty, and an injury proximately caused by the breach. Ross v. City of Chicago, 168 Ill. App. 3d 83, 86, 522 N.E.2d 215 (1988). The City is subject to the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/3-102 (West 1994)). Section 3-102(a) of the Act imposes a duty to exercise ordinary care to maintain property in a reasonably safe condition. The City may be liable if, after it constructs or improves public property, it appears from its use that the City has created a condition that is not reasonably safe. 745 ILCS 10/3-102(a) (West 1994). The Act codifies the common law duties of municipalities to maintain public ways. Ross, 168 Ill. App. 3d at 87. At common law, liability arises when the undertaken improvement creates an unreasonably dangerous condition. Ross, 168 Ill. App. 3d at 87.

The City argues that the scope of its duty to maintain property in a reasonably safe condition cannot be read to include maintenance of raised medians in such a way that they are safe for vehicles, including emergency vehicles, when they leave the roadway.

Plaintiffs note, however, that our supreme court has held that, "when a city creates a hazardous condition and someone is injured as a consequence it must respond in damages." Baran v. City of Chicago Heights, 43 Ill. 2d 177, 181, 251 N.E.2d 227 (1969). Plaintiffs argue that the planter boxes and tree pits created a hazardous condition. In support they rely on Michalak v. County of La Salle, 121 Ill. ...

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