The opinion of the court was delivered by: Justice Gordon
Appeal from the Circuit Court of Cook County.
Honorable Sophia H. Hall, Judge Presiding.
The plaintiff, Helen Barnhisel, instituted the instant personal injury action against the defendant, Village of Oak Park (the "Village"), seeking recovery for injuries she sustained when she tripped on a crack in a sidewalk and stumbled into a tree cut-out area adjacent to the sidewalk. The trial court granted summary judgment to the Village, finding the Village owed no duty of care because the crack in the sidewalk was de minimis and because the tree cut-out area, which it characterized as a "parkway," did not create a condition in the nature of "a pitfall, trap, or snare." Upon the denial of plaintiff's motion to reconsider, the plaintiff appeals, raising the following issues: (1) whether the tree cut-out area was a "parkway" to which the plaintiff was a permitted and intended user; and (2) whether the Village owed a duty of reasonable care with respect to the tree cut-out area. *fn1 For the reasons discussed below, we affirm the grant of summary judgment in favor of the Village.
The plaintiff testified in her deposition that, at approximately 8:30 a.m. on March 1, 1997, she was walking down the sidewalk on Oak Park Avenue in the Village of Oak Park. She had walked down that street an estimated six times before. While walking, she caught the tip of her left shoe on what she described to be a piece of raised and broken concrete, which she did not see. She stated that her right foot then went down into the tree cut-out area, causing her to fall forward on both knees landing partially on the sidewalk and partially in the grass and dirt of the tree cut-out area. The plaintiff also stated that, as a result of her injuries, she was required to undergo two surgeries on her right knee. She sustained medical bills totaling more than $26,000.
During her deposition, the plaintiff marked an "X" on a photograph depicting the area where she tripped. The plaintiff estimated the differential between the respective levels of the two pieces of concrete to be three-quarters of an inch to one inch. The photograph tendered to the court showed the tree cut-out area to be a relatively narrow strip. It ran adjacent to the street, from the curb past the midpoint of the sidewalk, extending approximately two-thirds of the width of the sidewalk, leaving approximately one-third of the width of the sidewalk for pedestrian traffic. The plaintiff's complaint alleged that the tree cut-out area was approximately 2 1/4 inches lower than the sidewalk and measured 72 inches long and 67 inches wide. *fn2
Attached to the Village's motion for summary judgment were the affidavits of two Village employees, Alex Alexandro, a risk manager, and James Budrick, Village engineer. Both averred in their affidavits that, on April 18, 1997, they examined the sidewalk where plaintiff's injury occurred. Each stated that the alleged crack upon which the plaintiff initially tripped was the "line" or "margin" between two slabs of concrete and that there was no difference in the height of the slabs.
Based upon the above, the Village moved for summary judgment, contending that even assuming plaintiff's testimony that the sidewalk was cracked and contained a height differential of three-quarters of an inch to one inch was true, the crack was de minimis and, thus, non- defective and non-actionable. Warner v. City of Chicago, 72 Ill. 2d 100, 378 N.E.2d 502 (1978) (stating 1 1/8 rise between sidewalk sections non-actionable but remanding case to jury given other factors relative to condition of sidewalk); Birck v. City of Quincy, 241 Ill. App. 3d 119, 608 N.E.2d 920 (1993) (1 7/8 height differential in sidewalk non- actionable as a matter of law).
In response, the plaintiff argued that the cause of her fall was not the differential between the sidewalk slabs but, rather, the differential between the sidewalk and the tree cut-out area. In reply, the Village argued that it was entitled to summary judgment based upon section 3-102 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-102 (West 1996)). It argued that the tree cut-out area was a parkway; that the plaintiff was not an intended user of the parkway; and that, therefore, the Village did not owe a duty of care to the plaintiff. The Village also argued that the tree cut-out area was open and obvious and was not a trap, snare, or pitfall.
In her surreply, the plaintiff argued that she was an intended user of the sidewalk and that the tree cut-out area was part of the sidewalk. She also argued that, even if the tree cut-out area was a parkway, the Village owed a duty to maintain it because pedestrians are intended users of parkways and are reasonably expected to walk upon them. The trial court granted summary judgment to the Village, specifically finding, at the hearing on plaintiff's motion for reconsideration, *fn3 that the Village owed no duty to fix the crack in the sidewalk because it was de minimis and that it owed no duty to fix the tree cut-out area because, under Marshall v. City of Centralia, 143 Ill. 2d 1, 570 N.E.2d 315 (1991), it was a parkway and contained no pitfalls, traps, or snares.
Summary judgment is proper when the pleadings, depositions, admissions of record and affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 1998); Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 586 N.E.2d 1211 (1992); Alcan United, Inc. v. West Bend Mutual Insurance Co., 303 Ill. App. 3d 72, 707 N.E.2d 687 (1999). An order granting summary judgment should be reversed if the evidence shows that a genuine issue of material fact exists or if the judgment was incorrect as a matter of law. In re Estate of Herwig, 237 Ill. App. 3d 737, 604 N.E.2d 1164 (1992). Appellate review of an order granting summary judgment is de novo. E.g., American Country Insurance Co. v. Kraemer Brothers, Inc., 298 Ill. App. 3d 805, 699 N.E.2d 1056 (1998); Apostal v. Oliveri Construction Co., 287 Ill. App. 3d 675, 678 N.E.2d 756 (1997).
The Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 1996)) provides that a local public entity has a duty to exercise ordinary care to maintain its property in a reasonably safe condition. That duty extends to people who exercise ordinary care and for whom the entity intends and permits the use of the property "in the 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). See also Marshall, 143 Ill. 2d at 6, 570 N.E.2d at 317, quoting Curtis v. County of Cook, 98 Ill. 2d 158, 164-65, 456 N.E.2d 116, 119 (1983) (stating section 3-102(a) of the Tort Immunity Act "'evinces a legislative intent to extend a duty of care only to those persons by whom the local government intended the property to be used'").
In the instant case, the parties do not dispute, for purposes of summary judgment, the manner in which the plaintiff's injuries occurred. As the trial court stated at the hearing on ...