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Montano v. The City of Chicago

October 26, 1999

MIGUEL MONTANO, PLAINTIFF-APPELLANT,
V.
THE CITY OF CHICAGO, DEFENDANT-APPELLEE



The opinion of the court was delivered by: Justice McNULTY

Appeal from the Circuit Court of Cook County.

Honorable Jennifer Duncan-Brice, Judge Presiding.

Plaintiff, Miguel Montano (Montano), appeals an order granting summary judgment in favor of defendant, the City of Chicago (City), and an order denying Montano's motion for a rehearing in a negligence action alleging that the City failed to maintain its alleys in a reasonably safe manner. On appeal, Montano contends that the City owed him a duty of care as a delivery person who was unloading a truck legally situated within an alley. For the reasons set forth below, we affirm.

On December 7, 1995, Montano, a delivery person for Columbia Furniture, was scheduled to deliver a couch to a house at 5915 South Damen Avenue. Montano used a truck that was 8 feet wide to deliver the couch. When he arrived at the house, he pulled into the first alley south of the intersection of 59th and Damen because of its proximity to the house and stopped in the middle of the alley, which was less than 16 feet wide.

Once stopped in the alley, Montano turned off the ignition and exited the truck. He walked around to the back of the truck and opened the rear door. He and his co-worker then entered the truck to remove the couch. While Montano and his co-worker were each holding one end of the couch, Montano backed out of the truck and stepped onto the rear step of the truck. As Montano stepped off the rear step onto the pavement of the alley, he twisted his foot on some uneven pavement surrounding a sewer cover and fell down.

On October 3, 1996, Montano filed a complaint against the City, alleging that it negligently: (a) allowed the alley to be in a dangerously uneven and broken condition; (b) failed to make the alley flush; (c) failed to repair the alley although the City knew or should have known of its dangerous condition; and (d) failed to warn Montano of the dangerous and defective nature of the alley. On October 23, 1996, the City filed a motion to dismiss paragraph 7(d) of the complaint, which alleged that the City failed to warn Montano of the dangerous or defective condition of the alley. The trial court granted the City's motion on January 15, 1997, finding that the City did not have a duty to warn Montano pursuant to section 3-104 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-104 (West 1994)) and struck paragraph 7(d) from the complaint.

On January 16, 1998, the City filed a motion for summary judgment, asserting that the City was immune from liability pursuant to section 3-102(a) of the Tort Immunity Act (745 ILCS 10/3-102(a) (West 1994)). On April 9, 1998, the trial court granted the City's motion, holding that the Tort Immunity Act precluded liability because Montano's use of the alley was neither intended nor permitted. The court reasoned that, since Montano violated section 9-64-130 of the Chicago Municipal Code (Code) (Chicago Municipal Code § 9-64-130 (1990)) while he was parked in the alley by not leaving at least 10 feet unobstructed, his use of the alley was unlawful and not intended or permitted. Accordingly, the City did not owe Montano a duty to repair or maintain the alley.

Montano filed a motion for a rehearing on May 11, 1998, arguing that he did not violate section 9-64-130 of the Chicago Municipal Code because technically his vehicle was "standing" in the alley, while the Code only prohibited "parking" in the alley if the vehicle did not leave at least 10 feet unobstructed; therefore, he was a permitted and intended user. The trial court denied Montano's motion on September 16, 1998. Montano now appeals this order as well as the April 9, 1998, order granting summary judgment.

Montano cannot appeal the trial court's September 16, 1998, order denying rehearing. An order denying a postjudgment motion is not itself a judgment and is not an appealable order. Relander v. Phoenix Mutual Life Insurance Co., 262 Ill. App. 3d 525, 527-28, 636 N.E.2d 944 (1994). However, since the underlying judgment and the postjudgment motion are closely related, an appeal of the underlying judgment carries with it the ruling on the postjudgment motion. Relander, 262 Ill. App. 3d at 528. Thus, although we can only review the April 9, 1998, order granting summary judgment for the City, our review of this order will indirectly include the denial of Montano's motion for a rehearing.

A summary judgment order is reviewed de novo. In re Estate of Hoover, 155 Ill. 2d 402, 411, 615 N.E.2d 736 (1993). Summary judgment is proper when the pleadings, depositions, admissions and affidavits establish that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005 (West 1996). Summary judgment is a drastic means of disposing of litigation and should only be allowed when the right of the movant is free and clear from doubt. McCullough v. Gallaher & Speck, 254 Ill. App. 3d 941, 948, 627 N.E.2d 202 (1993).

To recover in a negligence action, a plaintiff must allege a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. Lipper v. City of Chicago, 233 Ill. App. 3d 834, 836, 600 N.E.2d 18 (1992). Whether the defendant owed the plaintiff a duty of care is a question of law for the court. Marshall v. City of Centralia, 143 Ill. 2d 1, 6, 570 N.E.2d 315 (1991).

The City's duty to maintain its property is limited by section 3-102(a) of the Tort Immunity Act, which provides 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 1994).

According to the statute, the City has a duty of ordinary care to maintain its property only for people who are both intended and permitted users of the property. As explained by the supreme court in Boub v. Township of Wayne, 183 Ill. 2d 520, 524, 702 N.E.2d 535 (1998), although intended users of property are permitted by definition, permitted users are not necessarily intended users. See also Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 160, 651 N.E.2d 1115 (1995). Therefore, in the present case, ...


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