Appeal from the Circuit Court of Cook County 96 L 9628 Honorable Sophia H. Hall, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice McBRIDE
Plaintiff-appellant, Zofia Biel, independent administrator of the estate of Jan Biel, brought an action to recover against defendants, City of Bridgeview and William Hamman, and defendants-appellees Lyons Electric Co., Inc. (Lyons), and Pinner Electric, Inc. (Pinner), *fn1 when Jan Biel he was struck and killed by a car while crossing the street. Plaintiff claims that defendants' negligence caused a streetlight to be inoperable which, if operable, would have illuminated the location where Jan Biel was killed. Such negligence, according to plaintiff, was a contributing proximate cause of Jan Biel's death. Defendants moved for summary judgment on the basis that the inoperable streetlight only created a condition and could not have proximately caused the accident as a matter of law. The summary judgment motion was originally denied, but based on a motion to reconsider, the trial court reversed itself and entered summary judgment in favor of defendants. Plaintiff now appeals the trial court's summary judgment ruling.
Two issues are raised on review: whether the trial court properly granted summary judgment in favor of defendants on the ground that the nonfunctioning streetlight was only a condition and not a proximate cause of the accident; and whether the trial court abused its discretion by allowing defendant's motion to reconsider the denial of summary judgment in their favor. We state the following background facts.
Defendants are electrical contracting companies. Plaintiff's first amended complaint alleged the Village of Bridgeview contracted with defendants to make repairs on particular streetlights within the Village. Prior to August 21, 1995, defendants repaired streetlights on 79th Street west of Harlem Avenue, Bridgeview, Illinois.
On August 21, 1985, at approximately 11 p.m., Jan Biel was killed when he was struck by a car driven by William Hamman. At the time of the accident, Hamman was traveling westbound on 79th Street just past the intersection of 79th Street and Harlem Avenue, Bridgeview, Illinois. Hamman testified that he knew that one streetlight was out which provided illumination over the median area of 79th Street. He also stated that the marquee signs and parking lot lights of surrounding stores, including a K mart, were turned off. As he was driving approximately 30 miles per hour on 79th Street, just past the intersection of 79th Street and Harlem Avenue, Hamman stated that he moved into the left-hand lane. At that point, something hit the windshield. Hamman pulled to the side of the road, called his wife, told her he may have hit someone, and ran down to where the accident had occurred. Hamman said that he noticed that Biel's clothing was dark. After the accident, Hamman told police that he never saw Jan Biel prior to the collision.
Plaintiff's first amended complaint alleged that the City of Bridgeview contracted with defendants to manage, maintain, and control "a certain light post which was intended to provide sufficient lighting to that portion of 79th Street *** near its intersection with Harlem Avenue." The complaint further alleged that it then became defendants' duty to manage, maintain, and control "the aforementioned light pole so as to provide sufficient lighting to that portion of 79th Street *** near its intersection with Harlem Avenue." Notwithstanding this duty, the complaint stated that defendants were guilty of the following negligent acts or omissions:
"(a) carelessly and negligently failed to inspect said light pole at all reasonable times;
(b) carelessly and negligently failed to maintain said light pole;
(c) carelessly and negligently failed to create and implement procedures to inspect that aforementioned light pole;
(d) otherwise carelessly and negligently owned, operated, managed, maintained and controlled said light pole."
At all relevant times, the complaint alleged that the aforementioned light post was not illuminated. As a direct and proximate result of the defendants, "in failing to illuminate the said light post," the complaint stated the motor vehicle driven by Hamman struck and killed Jan Biel as he crossed 79th Street.
Glenn Jendrzejewski, an eyewitness to the accident, testified that he was familiar with 79th Street and that he lived in a trailer apartment at 7858 South Harlem Avenue, Bridgeview, Illinois. When he saw the accident, he was sitting on a white chair in front of his apartment. The accident occurred on a clear, dark night at approximately 11 p.m. He indicated that the streetlight in the vicinity of the accident was "out" and that it had been out for approximately a year. In the area where the particular light was not illuminated, the area was dark. The closest crosswalk was at the intersection of 79th Street and Harlem Avenue. According to Jendrzejewski, the accident occurred about a half a block west of this crosswalk on 79th Street.
Jendrzejewski testified that, prior to crossing 79th Street, Jan Biel stumbled and fell over a chain-link fence and then fell several more times on the sidewalk. He stated that Biel appeared to be drunk or on heavy medication. According to Jendrzejewski, Biel was wearing a dark green shirt, green pants, and dark socks. Biel then went over to a light pole that had a 40-mile-per-hour speed limit sign affixed to it. For a short time, Biel leaned against the pole. Jendrzejewski testified that Biel began crossing 79th Street. As Biel crossed, he was wobbling back and forth as he made it half way across the street. Biel then stood in the middle of the street for about 10 seconds. A car approached, and Jendrzejewski said that he saw Biel get hit by the front end ...