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Bonert v. Village of Schiller Park

May 15, 2001

LEROY BONERT, PLAINTIFF-APPELLANT,
v.
THE VILLAGE OF SCHILLER PARK, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 97 L 2357 Honorable Irwin J. Solganick, Judge Presiding.

The opinion of the court was delivered by: Justice McBRIDE

Not Released For Publication

LEROY BONERT, PLAINTIFF-APPELLANT,
v.
THE VILLAGE OF SCHILLER PARK, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.

Appeal from the Circuit Court of Cook County. No. 97 L 2357 Honorable Irwin J. Solganick, Judge Presiding.

The opinion of the court was delivered by: Justice McBRIDE

Plaintiff Leroy Bonert brought a negligence action against defendant Village of Schiller Park to recover damages for injuries he sustained when he tripped over an indentation at the intersection of Grace Street and an alleyway in Schiller Park. On defendant's motion, the circuit court granted summary judgment in its favor and against plaintiff. Plaintiff contends on appeal that summary judgment was improper because he was an intended and permitted user of the street under section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-102 (West 1998)).

 Plaintiff filed a complaint alleging that defendant failed to use reasonable care to maintain the public "side way" and alley, and failed to warn plaintiff of the dangerous condition. Plaintiff also alleged that defendant failed to repair the side way and the alley, and failed to erect barriers or warning signs to minimize the hazardous condition. The second count alleged that defendant's conduct was "willful and wanton."

Defendant filed a motion for summary judgment, alleging that it was immune from liability under section 3-102 of the Act (745 ILCS 10/3- 102(a) (West 1998)) because plaintiff was not an "intended and permitted" user of the street. Defendant also alleged that plaintiff did not come within the exception which classifies those pedestrians in the immediate vicinity of their lawfully parked vehicles as intended and permitted users of the street.

In support of its motion for summary judgment, defendant attached the transcript of plaintiff's deposition testimony. Plaintiff stated in his deposition that on March 11, 1996, at about 6:50 a.m., he was walking from his apartment located on Irving Park Road, to his car parked on the west side of Grace Street. Plaintiff explained that his apartment borders an alley that runs in an east-west direction, while Grace Street runs in a north-south direction and intersects Irving Park Road. Plaintiff's apartment was located east of Grace Street. Plaintiff stated that it was his habit to walk through the alley and cross over to the west side of Grace Street to get to his parked car. Plaintiff also explained that there are sidewalks on both sides of Grace Street and that the nearest crosswalk was at the intersection of Irving Park Road and Grace Street.

When plaintiff left his apartment that morning, he walked through the alley toward his car, which was parked slightly north of the alley on the other side of Grace Street. Plaintiff stated that as he approached Grace Street, he tripped on an "indentation" that was pooled with water in the area where the alley meets the street. According to plaintiff, the indentation was approximately 3 feet wide and 8 to 10 feet long, and 1½ to 2 inches deep. Plaintiff stated that after he stumbled, he "picked up speed," tried to put his arm out to catch himself, but fell in the middle of the street. When plaintiff was presented with a photograph, he clarified that he started to trip "past the telephone pole in the street."

Plaintiff was presented with several other photographs depicting the intersection of Grace Street and the alley. The record contains some of these photographs, one of which depicts Grace Street and a portion of the alley. The photograph shows cars parked on the opposite side of the street, but no meters, street markings or signs are shown.

Defendant also supported its motion with the discovery deposition of Glenn Spachman, defendant's comptroller and manager. Spachman stated that he and Officer Steve Lee performed a "site inspection," during which Officer Lee pointed out that he found plaintiff in the middle of the street when he arrived at the scene. Spachman estimated that plaintiff fell in the middle of the street at a distance of 12 feet from either side of the street.

Thereafter, plaintiff filed his response to defendant's motion for summary judgment, alleging that he came within the exception to the Act because he was walking within the boundaries of a parking lane when he tripped. Plaintiff attached several photocopies of photographs of the area in ...


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