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Kavales v. City of Berwyn

May 24, 1999


The opinion of the court was delivered by: Justice Gallagher

Appeal from the Circuit Court of Cook County

Honorable Kathy M. Flanagan, Judge Presiding.

This action was brought to recover damages for personal injuries allegedly sustained by the plaintiff's decedent, Diana Drost, when she fell after stepping into a depressed area of the pavement, as she was crossing a public alley in the City of Berwyn. Plaintiff's second amended complaint alleged negligence on the part of defendants, the City of Berwyn (Berwyn) and Northern Illinois Gas Company (Northern). The complaint alleged that Berwyn failed to properly maintain the crosswalk area where plaintiff's decedent fell. As to Northern, the complaint alleged it failed to properly repair and restore the crosswalk area, after having undertaken excavation and pipe-laying activities in the area. On October 14, 1997, the trial court granted summary judgment in favor of both defendants. Plaintiff now appeals.

In granting the defendants' motions for summary judgment, the trial court determined, for different reasons, that neither defendant owed a duty towards plaintiff's decedent. Our review of the trial court's grant of summary judgment is de novo. In re Estate of Hoover, 155 Ill. 2d 402, 615 N.E.2d 736 (1993). Our analysis of whether either defendant owed a duty to plaintiff's decedent necessarily takes into account "the foreseeability of the plaintiff's injury, the likelihood of the occurrence, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant." Doe v. McKay, 183 Ill. 2d 272, 278, 700 N.E.2d 1018, 1022 (1998).

The undisputed facts relevant to this appeal include the following: On February 10, 1995, plaintiff's decedent, Diana Drost, and a companion were walking southbound on the west sidewalk in the 3200 block of South Oak Park Avenue in the City of Berwyn. There was an alley which ran perpendicular to and intersected with the sidewalk and Oak Park Avenue. At the mouth of the alley, the sidewalk to the north of the alley formed a triangular-shaped concrete ramp that led down to the alley surface. The sidewalk resumed on the south side of the alley, but had a curb instead of the ramp that was on the other side.

When plaintiff's decedent approached this junction, she crossed the alley and while still within the lateral lines of the sidewalk sections to the north and south of the alley, stepped into a depressed, uneven, and cracked portion of the pavement, sustaining serious bodily injury. Her companion identified the place of the fall as being a depressed area, midway between the two sides of the alley, within the extension of the sidewalk between the outermost portion of the curb and building line.


We first address the issue of whether Berwyn owed a duty towards plaintiff's decedent. A municipality's duty to maintain its property is governed by section 3-102(a) of the Illinois Local Government and Governmental Employees Tort Immunity Act, which provides, in pertinent part, as follows:

"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, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition." 745 ILCS 10/3-102(a) (West 1996).

That the location of plaintiff's decedent's fall was on property owned by Berwyn is not in dispute. Rather, it is the characterization of that property upon which the parties disagree. Berwyn argued, and the trial court agreed, that the property was an alley which Berwyn had no duty to maintain in a reasonably safe condition for use by pedestrians, because while they may be permitted users, they are not intended users, of alleys. Plaintiff contends that the location of the fall was on property which can be described as a crosswalk, as that term is defined by statute, and Berwyn did have a duty to maintain its crosswalks in a reasonably safe condition for pedestrian use, because pedestrians are permitted and intended users of crosswalks. Thus, the narrow issue presented here is whether plaintiff's decedent was a permitted and intended user of that portion of the public alley which intersected with a public sidewalk upon which plaintiff's decedent was traversing.

This court has stated that "an alley is a roadway designed for vehicular traffic, and the duty imposed upon a municipality under section 3-102(a) is the same as that imposed for a street." Khalil v. City of Chicago, 283 Ill. App. 3d 161, 163-64, 669 N.E.2d 1189, 1191 (1996). While both parties have acknowledged this statement, they dispute its relevance to the facts of this case. Berwyn contended, and apparently the trial court agreed, that Khalil was dispositive because pedestrians are not intended users of streets or alleys, and since plaintiff's decedent's fall was in an alley, Berwyn had no duty to maintain the alley in a safe condition for the use of pedestrians. This Conclusion, however, fails to address the threshold issue of whether plaintiff's decedent's fall was in an alley or in a crosswalk. Moreover, because Khalil did not address this issue, we find the case distinguishable.

In Khalil, it was undisputed that the plaintiff's decedent was walking through an alley and down the middle of the alley. Khalil, 283 Ill. App. 3d at 162, 669 N.E.2d at 1190. In the present case, plaintiff's decedent was walking across an alley. Since the distinction between the crosswalk area and the rest of the street has been recognized in cases dealing with pedestrian use of streets, it should also be addressed in cases dealing with pedestrian use of alleys.

"In considering the scope of the duty delineated by this provision, Illinois courts have developed the general principle that a municipality owes no duty of care to a pedestrian who walks in or crosses a public roadway outside a crosswalk. [Citations.]" Curatola v. Village of Niles, 154 Ill. 2d 201, 208, 608 N.E.2d 882, 885 (1993). A municipality does owe a duty of reasonable care to pedestrians who walk in a street inside of or within the boundaries of crosswalks. See, e.g., Ramirez v. City of Chicago, 212 Ill. App. 3d 751, 753, 571 N.E.2d 822, 823 (1991) (municipality has a duty to reasonably maintain its crosswalks for pedestrians). A fortiori, Berwyn here did owe a duty to plaintiff's decedent if she was walking inside or within the boundary of a crosswalk.

The majority of cases have involved plaintiffs who crossed streets midblock, outside of a crosswalk, whose use of the street was not considered to be permitted and intended because they crossed or walked in the street where there was no crosswalk and the only use of the street that was intended was vehicular use. See, e.g., Sisk v. Williamson County, 167 Ill. 2d 343, 657 N.E.2d 903 (1995)(no duty owed to pedestrian who fell from a bridge which was part of a country roadway); Vaughn v. City of West Frankfurt, 166 Ill. 2d 155, 158, 651 N.E.2d 1115 (1995)(no duty owed to pedestrian who stepped into hole while crossing in middle of street); Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 424, 592 N.E.2d 1098 (1992)(no duty owed to pedestrian crossing highway where no crosswalk while en route to parked car); Khalil, 283 Ill. App. 3d at 164, 669 N.E.2d at 1191 (no duty to pedestrian using alley as if it were a sidewalk by walking down middle of alley). These cases are distinguishable and none addressed the precise issue that we face, whether the junction of an alley with a sidewalk can accurately be described as a crosswalk intended for pedestrians. Apart from cases that involved factual disputes regarding the true location of a plaintiff's injury, that is, whether the exact location of a fall ...

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