Appeal from the Circuit Court of Cook County. No. 97 L 04987 The Honorable Deborah M. Dooling, Presiding Judge
The opinion of the court was delivered by: Justice Buckley
Plaintiff brought an action for personal injuries sustained when he stepped into a pothole on a public roadway located in the Village of Niles on March 2, 1983. The trial court granted summary judgment in favor of the defendant and plaintiff appealed. Our court affirmed (Curatola v. Village of Niles, 230 Ill. App. 3d 743 (1992)) but our decision was subsequently reversed by the Illinois Supreme Court and the case remanded for trial (Curatola v. Village of Niles, 154 Ill. 2d 201 (1993)).
On remand, the jury returned a verdict in favor of plaintiff and judgment was entered on the verdict. Defendant now appeals from the denial of its posttrial motion for judgment notwithstand-ing the verdict and from the judgment entered on the verdict and raises the following issues: (1) whether the defendant owed a duty of care to plaintiff; and (2) whether the trial court erred in refusing to give the jury defendant's two proffered special interrogatories.
Plaintiff Carl Curatola filed a negligence action against the Village of Niles (Niles) for personal injuries sustained on March 2, 1983, when he stepped from the rear of his delivery truck on to the edge of a pothole located on Elizabeth Street, which is owned and maintained by Niles. Prior to trial, Niles filed a motion for summary judgment pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-102 (West 1998)). Section 3-102(a) of the Tort Immunity Act provides that
"[A] local public entity has the duty to exer-cise 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 pro-perty 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 1998) (formerly Ill. Rev. Stat. 1987, ch. 85, par. 3-102(a)).
On March 6, 1990, the trial court granted summary judgment for Niles. In so doing, the trial court relied on the following testi-mony given by plaintiff at his deposition. Plaintiff stated that on the day of the incident, he was working as a semi-truck driver making deliveries. When he arrived at Joseph Electronics, one of the company's employees directed him where to position his truck for unloading. Plaintiff parallel parked the truck along the southern curb of Elizabeth Street so that the rear driver's side was about six inches from the curb. Plaintiff then exited the cab of the truck, opened the rear door of the trailer and went inside. Plaintiff moved the cartons to the back of the trailer so that the company's employees could unload them. After the boxes were unloaded, plaintiff closed the trailer door and stepped onto the street. As he did so, plaintiff twisted his foot on the edge of a pothole which, according to plaintiff, was located about seven feet from the curb. The trial judge determined that this evidence supported the view that the truck was parked illegally in front of the driveway and thus, plaintiff could not be considered an "intended and permitted" user of the street under the Tort Immunity Act. See Curatola v. Village of Niles, 154 Ill. 2d 201, 204 (1993).
Plaintiff filed a motion to reconsider and attached additional evidence by way of affidavit that his truck did not block or interfere with the use of the driveway and that its parking did not violate municipal ordinances. Niles filed no counteraffidavits. See Curatola v. Village of Niles, 230 Ill. App. 3d 743, 745 (1992). Plaintiff's motion to reconsider was denied and plaintiff appealed.
On appeal, our court affirmed. See Curatola v. Village of Niles, 230 Ill. App. 3d 743, 745 (1992). We chose to follow our decision in Vlahos v. City of Chicago, 198 Ill. App. 3d 911 (1990), which held that a municipality has no duty to pedestrians who use the street outside of the crosswalks, rather than the Third District's decision in Di Domenico v. Village of Romeoville, 171 Ill. App. 3d 293 (1988), which held that a municipality has a duty to pedestrians who use the street in the immediate zone of travel around their lawfully parked vehicles. See Curatola, 230 Ill. App. 3d at 745-46.
Plaintiff appealed our decision to the Illinois Supreme Court. See Curatola v. Village of Niles, 154 Ill. 2d 201 (1993). The supreme court framed the issue as "whether the trial court properly granted summary judgment determining that [Niles] owed plaintiff no duty to maintain the street area immediately around his parked vehicle." Curatola, 154 Ill. 2d at 205. The court began its dis-cussion with the following observation:
"[Plaintiff] asserts that the evidence he presented in support of his motion to recon-sider established that his vehicle was legally parked at the time of his fall. [Niles] con-cedes that no evidence was presented contra-vening this fact. [Citation.] Consequently, we consider [plaintiff's] vehicle as being legally parked when he fell." Curatola, 154 Ill. 2d at 205-06.
The court began its analysis with an examination of the cases that have developed and employed 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." Curatola, 154 Ill. 2d at 208-10. The court then carved out an exception to that principle and held:
"In the present case, [plaintiff's] tractor-trailer was lawfully parked and thus he was a permitted user of the street. At the time he was injured, he was using the street to exit the rear of his trailer following its unloading by other persons. *** Under these circumstances, [plaintiff's] use of the immediately surrounding street to exit his vehicle was permitted and intended. [Plain-tiff's] use of this area of the street ...