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Diedfedorf v. The City of Peoria

November 03, 1999

DANIEL DIEFENDORF, PLAINTIFF-APPELLANT,
V.
THE CITY OF PEORIA, DEFENDANT-APPELLEE AND THIRD-PARTY PLAINTIFF.
V.
GREATER PEORIA SANITARY DISTRICT THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Justice Koehler

The plaintiff in this negligence action, Daniel Diefendorf, appeals the circuit court of Peoria County's grant of summary judgment in favor of the defendants, City of Peoria (Peoria) and the Greater Peoria Sanitary District (District). The issue on appeal is: Did the circuit court err in concluding no genuine issue of material fact existed because the plaintiff was not both an intended and permitted user of the sidewalks and the defendants, therefore, did not owe a duty to the plaintiff to maintain the sidewalk in a safe condition? Because we conclude that the circuit court did not err, we affirm.

FACTS

The plaintiff, Daniel Diefendorf, was injured when he fell from his bicycle while he was riding on the sidewalk in Peoria. As the plaintiff rode, the bicycle came to a sudden stop when the front tire hit a manhole cover. Consequently, the plaintiff pitched over the bicycle's handlebars, hit the ground, and broke his arm. According to the plaintiff, the manhole cover and a bracket attached to it rose approximately six inches from the sidewalk and was concealed from view by two-foot-high weeds and grass growing over the area. The plaintiff alleged that the growth also concealed a four-inch "fracture" in the sidewalk.

The plaintiff filed a negligence action against Peoria for failure to use reasonable care in the maintenance and upkeep of its property by: (1) pouring a sidewalk which allowed the manhole and assembly to protrude approximately six inches above the sidewalk; (2) failing to repair the break in the sidewalk; (3) failing to cut the weeds and grass which had allegedly grown on the sidewalk to a height of two feet; and (4) failing to warn of the unsafe conditions when the city knew or, in the exercise of reasonable care, should have known of the dangerous condition prior to the time of the accident. The plaintiff filed an amended complaint to include a negligence count against nearby property owners alleging that they breached their duty to use reasonable care in the maintenance and upkeep of their property adjacent to the city sidewalk. Peoria filed a third-party complaint for contribution against the District pursuant to the Illinois Joint Tortfeasor Contribution Act. 740 ILCS 100/0.01 (West 1996).

The circuit court granted the property owners' motion for summary judgment, and later granted Peoria's motion for summary judgment, concluding that the plaintiff was not an intended user of the sidewalk as required under the Local Governmental and Governmental Employee Tort Immunity Act (Act) (745 ILCS 10/3--102(a) (West 1996)) and, as a consequence, Peoria did not owe a duty to the plaintiff. The circuit court granted the District's motion for summary judgment on the same ground. The plaintiff now appeals.

ANALYSIS

Summary judgment should be granted only when the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue of material fact when construed in the light most favorable to the nonmoving party; therefore, the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 1996). The reviewing court's function is limited to a determination of whether the circuit court correctly concluded that no genuine issue of material fact had been raised and, if none was raised, whether judgment as a matter of law was correctly entered. Fuller v. Justice, 117 Ill. App. 3d 933, 938, 453 N.E.2d 1133, 1136 (1983). Accordingly, this court's review of a grant of summary judgment is de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992).

To state a cause of action for negligence, the plaintiff must show that: (1) the defendant owed him a duty of care; (2) that the defendant breached that duty; and (3) the plaintiff suffered injury proximately caused by the breach. Curtis v. County of Cook, 98 Ill. 2d 158, 162, 456 N.E.2d 116 (1983).

The municipality's duty is limited by the language of the Act which reads 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 ***." 745 ILCS 10/3--102(a) (West 1996). The Act continues the common law duties of a municipality. Larson v. City of Chicago, 142 Ill. App. 3d 81, 83, 491 N.E.2d 165, (1986). Under the Act, a municipality has only a duty of care to maintain property for uses that are both permitted and intended. Vaughn v. City of West Frankfort, 166 Ill.2d 155, 160, 651 N.E.2d 1115, 1117 (1995).

"[F]oreseeability, pursuant to the language of the *** Act, pertains to use of the municipality's property by permitted and intended users, not to foreseeable users *** 'in a manner in which and at such times as it was reasonably foreseeable it would be used.' (Emphasis added.)" Risner v. City of Chicago, 150 Ill. App. 3d 827, 831, 502 N.E.2d 357, 359-60 (1986), quoting Ill.Rev.Stat. 1983, ch. 85, par. 3--102.

The plaintiff argues that both the Peoria City Code (code) and the "Peoria Bicycling Map and Resource Guide" (map) evidence Peoria's intent that bicyclists are to use the sidewalks. Additionally, the plaintiff argues that bicyclists have historically used the sidewalk and such use is foreseeable; therefore, Peoria breached its duty to the plaintiff. The plaintiff further contends that, as a consequence of our supreme court's holding in Boub v. Township of Wayne, 183 Ill. 2d. 520, 702 N.E.2d 535 (1998), bicyclists are not intended users of highways and roadways. Accordingly, he asserts that this court should determine that bicyclists are similar to pedestrians and are intended users of sidewalks. Lastly, the plaintiff argues that Peoria need only pass an ordinance prohibiting use of sidewalks by bicyclists to indicate that they are not intended users.

The defendants concede that the plaintiff was a permitted user of the sidewalk; however, they argue that he was not an intended user of the sidewalk. The defendants contend that section 28--2 of the code, which defines sidewalks as intended for the use of pedestrians, thereby indicates that bicyclists are merely permitted users of the sidewalk. City of Peoria Code, Ch. 28, Section 28--2 (1957). They argue that the map provides further evidence that bicyclists are permitted, but not intended, because the map establishes routes upon streets, and not upon sidewalks. Finally, the defendants argue that the lack of markings or physical signs describing the sidewalk as a bicycle route clearly shows Peoria's lack of intent to make it such.

Under the Act, it is the intent of the local public entity that controls, and we, therefore, look to the code to determine the intended users of Peoria's sidewalks. Boub, 183 Ill. 2d at 525, 702 N.E.2d at 538. The code defines a sidewalk as "[t]hat portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, intended for use of pedestrians." City of Peoria Code, Ch. 28, Section 28--2 (1957). A "pedestrian" is "any person afoot" and a "bicycle" is "every device propelled by human power upon which any person may ride, having two tandem wheels except scooters and similar devices." City of Peoria Code, Ch. 28, Section 28--2 (1957). It is clear from the code that ...


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