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Elfayer v. City of Chicago

September 14, 2001

IN RE ESTATE OF JOSEPH ELFAYER, DECEASED.
(PENELOPE ELFAYER, ADM'R, PLAINTIFF-APPELLANT
v.
THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE)



Appeal from the Circuit Court of Cook County. No. 94 L 11842 The Honorable Sophia H. Hall, Presiding Judge

The opinion of the court was delivered by: Justice Buckley

UNPUBLISHED

In September 1994, plaintiff Penelope Elfayer, as administra-tor of her deceased husband's estate, filed a wrongful death and survival action against defendant City of Chicago (the City) alleging both negligent and willful and wanton conduct in maintaining a traffic median barrier. Defendant motioned for summary judgment, which the trial court denied in January 1996. However, as pleading and discovery progressed, defendant again motioned for summary judgment. In April 1999, the trial court granted defendant's motion, thereby disposing of the cause. On appeal, plaintiff contends that the trial court erred in finding on this second motion that there was no genuine issue of material fact as to proximate cause and in holding that plaintiff's expert was not permitted to rely upon measurements of the median taken by police officers. Plaintiff asks that we reverse the grant of summary judgment and remand the cause for further proceedings. We affirm.

BACKGROUND

This cause involves a September 16, 1990, car accident that occurred on the elevated overpass at 3800 South Damen Avenue. Around 9 p.m., Sergeant Joseph Elfayer of the Chicago police department was driving home from work, proceeding southbound on the overpass. At the same time, Salvador Alvarez was driving north-bound with a blood-alcohol level of .206 and cocaine in his system. Alvarez blacked out, lost control of his vehicle and hit the overpass' median, crossing over that barrier and colliding with Elfayer's vehicle. Elfayer died as a result of his injuries. Alvarez pled guilty to driving while intoxicated and reckless homicide.

Plaintiff filed an action against defendant for failure to properly maintain the median barrier, claiming that Elfayer's death was proximately caused by an alleged reduction in the median's height. In his affidavit and deposition, civil traffic engineer Andrew Ramisch concluded that the median at the site of the accident had not been properly maintained for protection from crossover accidents such as this one. Finding the median to be substandard and defective, Ramisch testified that due to roadway resurfacing, the median, which was to be eight inches in height according to original design specifications, had been reduced to six inches. This was a "substantial contributing factor in causation" of the accident, for Ramisch believed that an eight-inch median would have had a "better probability" of preventing Alvarez from crossing over "just because it was higher." However, Ramisch admitted that there is no set standard or regulation governing the height of median barriers. Moreover, though Ramisch claimed he investigated the site personally, he never measured the median. Instead, he admitted that he based his six-inch calculation on a postaccident police report and photographs.

Plaintiff also presented the deposition of Louis Chrzasc, senior project director for the bureau of bridges and transit of the City of Chicago, who testified that design specifications from the late 1950s called for the overpass median to be eight inches high. Chrzasc explained that over the years, the roadway had been resurfaced; however, he believed that the method defendant used was not that of layering asphalt but rather removing the existing layer and laying down a new one. Chrzasc further testified that the median was subject to inspection every two years for defects in height. From photographs of the median, he identified some such defects. Finally, Chrzasc stated that prior to the accident, defendant commissioned and received plans for installing additional protective barriers at the site due to the median's poor condition.

Glenn Hanck, a supervising engineer also from the bureau of bridges and transit, testified in his deposition that in 1984, the consulting engineering firm of Paul E. Mast prepared a project development report for defendant on the condition of roadway areas needing upgrades. This report warned of the dangers of head-on collisions and recommended that the overpass median be restyled for more protection. Hanck testified that no changes were made to the median.

Mark Lawrence, a professional engineer, investigated the accident site for defendant. He took photographs of the median and compared them to photographs taken of the same area at the time of the accident. In his affidavit, Lawrence determined that the median was in substantially the same condition when he investigated it as at the time of the accident. The results of his measurements at the site, provided in photographs included in the record, showed the median to be eight inches high.

After a prior motion was denied years earlier, defendant again moved for summary judgment, arguing that from this evidence, it was clear that Alvarez' action of driving drunk, rather than the median's height, was the proximate cause of Elfayer's death and that defendant is immunized under the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/1-101 et seq. (West 1998) for any decision it made regarding roadway resurfacing and the median. This time, the trial court granted defendant's motion, finding that the Act applied, that plaintiff had not provided any evidence that defendant had reduced the median's height through repaving and that, whatever the median's height, this was merely a condition, not a proximate cause, of the accident. The court further declared that "it's no issue of material fact that the intervening cause" of Alvarez' drunk driving "was independent." Accordingly, the court granted summary judgment and disposed of the cause. Plaintiff filed the instant appeal.

ANALYSIS

The purpose of summary judgment is to determine whether any genuine issue of material fact exists between the parties. Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 393 (2000). Summary judgment will thus be granted if the pleadings, depositions and admissions on file, together with any affidavits, show that there is no such issue and that the moving party is entitled to judgment as a matter of law. Billman v. Frenzel Construction Co., 262 Ill. App. 3d 681, 684 (1993). We review the propriety of an order granting summary judgment de novo. Anderson v. Alberto-Culver USA, Inc., 317 Ill. App. 3d 1104, 1110 (2000).

A. Duty of Care

To recover in tort on her complaint alleging negligence and willful and wanton conduct, plaintiff must first establish that defendant owed Elfayer a duty of care. See Washington v. City of Chicago, 188 Ill. 2d 235, 239 (1999) (a plaintiff cannot recover as a matter of law unless duty is owed); Bialek v. Moraine Valley Community College School District 524, 267 Ill. App. 3d 857, 860 (1994); Quintana v. City of Chicago, 230 Ill. App. 3d 1032, 1036 (1992). Whether a duty exists is a question of law for the trial court to decide. DiBenedetto v. Flora Township, 153 ...


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