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Friedman v. City of Chicago

September 6, 2002

MERLE FRIEDMAN, PLAINTIFF-APPELLANT,
v.
CITY OF CHICAGO, A MUNICIPAL CORPORATION, MAIN STREET AND MAIN INCORPORATED, D/B/A RED FISH RESTAURANT, AND STATE AND KINZIE ASSOCIATES, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 99 L 2471 Honorable Mary A. Mulhern, Judge Presiding.

The opinion of the court was delivered by: Justice Tully

UNPUBLISHED

OPINION

Plaintiff, Merle Friedman, commenced this action against defendants, City of Chicago, Red Fish Restaurant (Red Fish), and State and Kinzie Associates (State and Kinzie), sounding in negligence. The trial court granted summary judgment in favor of Red Fish and State and Kinzie. The City of Chicago settled with the plaintiff and is not a party to this appeal. Plaintiff raises two issues on appeal.

The record establishes the following undisputed facts. On August 17, 1998, Merle Friedman suffered injuries when she fell on a sidewalk outside the Red Fish Restaurant located at the corner of State Street and Kinzie Street in Chicago. Defendant State and Kinzie was the owner of the building and Defendant Red Fish was the owner of the restaurant.

The Red Fish had erected a barrier for an outdoor café which encompassed a portion of the sidewalk outside of the restaurant, just west of the entrance. Ms. Friedman was walking east along Kinzie Street towards the entrance to the Red Fish Restaurant. As she walked around the barrier for the outdoor seating area, she fell on a portion of the sidewalk that was cracked and uneven. Ms. Friedman fell near the curb and was laying with her head toward the street. Ms. Friedman's son-in-law was meeting her at the restaurant and when he arrived, he saw her on the ground. He took Ms. Friedman to the hospital.

Ms. Friedman filed a complaint alleging that each of the defendants owned, managed and/or maintained the sidewalk where her injury occurred. She alleges that both Red Fish and State and Kinzie had an agreement with the City of Chicago to occupy, manage and control the sidewalk area outside of the Red Fish Restaurant. She alleges that defendants were negligent, causing a dangerous and defective condition which caused her injuries.

The trial court granted summary judgment in favor of defendants Red Fish and State and Kinzie and against plaintiff. The trial court found that if the defendants have a duty to maintain the sidewalk, that duty only extends to the portion of the sidewalk actually appropriated. The trial court further determined that the pictures indicate Red Fish had appropriated approximately one-third of the sidewalk.

On appeal, the plaintiff contends that the case law does not support a finding that Red Fish's duty to maintain extends only to the area of sidewalk actually appropriated. The plaintiff further contends that the amount of sidewalk appropriated by Red Fish is a question of fact. Finally, the plaintiff maintains that the defendants assumed the duty to maintain and repair the sidewalk by contractually exerting control over the sidewalk.

DISCUSSION

A court will grant summary judgment when the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Purtill v. Hess (1986), 111 Ill.2d 229, 240, 489 N.E.2d 867, 871; 735 ILCS 5/2-1005(c) (West 2000). In determining whether summary judgment is appropriate, the trial court must construe all pleadings, depositions, admissions and affidavits strictly against the moving party and liberally in favor of the opponent. Purtill, 111 Ill.2d at 240, 489 N.E.2d at 871. In an action based upon negligence, the plaintiff must set out sufficient facts establishing a duty owed by the defendant to the plaintiff, a breach of that duty and that the injury was proximately caused by the breach. Vesey v. Chicago Housing Authority, 145 Ill.2d 404, 411, 583 N.E.2d 538, 541 (1991). The existence of a duty must be determined by the court as a matter of law, but the questions of whether there was a breach and whether that breach was a proximate cause of the injury are questions of fact for the jury. Rodriguez v. Norfolk & Western Ry. Co., 228 Ill.App.3d 1024, 1037-38, 593 N.E.2d 597, 607 (1992).

Whether a duty exists depends upon whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. Ziemba v. Mierzwa, 142 Ill.2d 42, 566 N.E.2d 1365 (1991). Generally, "[i]n considering whether a duty exists in a particular case, a court must weigh the foreseeability that defendant's conduct will result in injury to another and the likelihood of an injury occurring, against the burden to defendant of imposing a duty, and the consequences of imposing this burden." Ziemba, 142 Ill.2d at 47, 566 N.E.2d 1365.

The general rule regarding the duty of a business occupier of any premises is that it must provide a reasonably safe means of ingress to and egress from the premises, but ordinarily it will not be held liable for any injuries incurred on a public sidewalk under the control of a municipality, even though the sidewalk may also be used for ingress or egress to the premises. Schumann v. Pekin House Restaurant (1981), 102 Ill.App.3d 532, 534, 430 N.E.2d 145,146; Repinski v. Jubilee Oil Co. (1980), 85 Ill.App.3d 15, 21, 405 N.E.2d 1383, 1388; Decker v. Polk Brothers (1976), 43 Ill.App.3d 563, 565, 357 N.E.2d 599, 600. However, if the occupier of the premises appropriates the sidewalk for its own use, it then has a duty to insure that the sidewalk is safe. Dodd v. Cavett Rexall Drugs, Inc., 178 Ill.App.3d 424, 432, 533 N.E.2d 486, 491 (1988); see also McDonald v. Frontier Lanes, Inc. (1971), 1 Ill.App.3d 345, 352, 272 N.E.2d 369, 373; Cooley v. Makse (1964), 46 Ill.App.2d 25, 30, 196 N.E.2d 396, 398.

In the case at bar, defendants maintain that any duty to maintain the sidewalk extends only to that part of the sidewalk which was appropriated. The trial court agreed. The plaintiff however, argues that the case law does not support such a finding. The plaintiff maintains that a duty of reasonable care is owed by those who assume the use of the sidewalk for their business purposes. Plaintiff cites King v. Swanson, 216 Ill.App. 294 (1919); Donovan v. Raschke, 106 Ill.App.2d 366, 246 N.E.2d 110 (1969); McDonald v. Frontier Lanes, Inc. , 1 Ill.App.3d 345, 272 N.E.2d 369 (2d ...


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