Appeal from the Circuit Court of Cook County. No. 97 L 1276 Honorable Randye Kogan, Judge Presiding.
The opinion of the court was delivered by: Justice Reid
The plaintiff, Robert Zakoff (Zakoff), who is serving as special administrator of the estate of his deceased son, Joseph Zakoff (Joseph), appeals the trial court's order which granted the defendant Chicago Transit Authority's (CTA) motion for summary judgment. For the reasons that follow, we affirm the trial court's decision.
On February 4, 1996, Joseph was involved in an accident while driving his vehicle westbound on Interstate 90 (Kennedy expressway) near Bryn Mawr Avenue in Chicago, Illinois. His vehicle left the roadway, hit a light pole, skidded across a patch of grass and collided with a concrete barrier, before going through a chain-link fence and crashing into the side of the CTA Nagle substation building. Joseph died as a result of injuries he received during the accident.
The Nagle substation is surrounded by a chain-link fence. The concrete barrier that Joseph hit abuts the chain-link fence surrounding the substation.
On January 31, 1997, Zakoff filed a three-count complaint, wherein he alleged that the CTA was negligent because it: (1) improperly installed the concrete barrier, (2) allowed the barrier and the surrounding area to remain in an unsafe condition, (3) failed to warn motorists of the dangerous condition, (4) allowed and permitted the Nagle substation to remain too close to the roadway, and (5) failed to install a suitable barrier.
On March 16, 1999, Illinois State Police Trooper Roy Galazka was deposed. During his discovery deposition, Galazka testified that on February 4, 1996, he was driving westbound on the Kennedy expressway when he observed three cars pulled over on the right shoulder with their emergency flashers activated. As he got closer, Galazka saw that a light pole was down across the berm on the right shoulder. Galazka defined the berm as the "grassy area on the side of the roadway beyond the shoulder."
Galazka stated that he immediately pulled onto the right shoulder and activated his emergency lights. Galazka was the first "official" to report to the accident scene. When he pulled over, Galazka saw the top of Joseph's car to his right. After exiting his vehicle, Galazka walked over to where the vehicle was located. Galazka said that Joseph was sitting in the driver's seat. The back of the driver's seat had broken and he was fully extended to the rear with his feet still in the well beneath the dashboard on the driver's side, but the roof of the vehicle had crumpled and formed around Joseph's head. It was Galazka's belief that Joseph was already deceased at this time.
Galazka recalled that it was 19 degrees below zero with a windchill of approximately 60 degrees below zero. He remembered the road being clear on the night of the accident. Galazka, however, did say that there was ice and snow on the berm, but he could not recall the condition of the shoulder.
Galazka estimated that Joseph's vehicle traveled approximately 175 feet after it left the Kennedy expressway and struck the CTA substation building.
Edward Buczkiewicz, a senior power engineer for the CTA, was deposed on March 10, 2000. Buczkiewicz has been responsible for the maintenance of the CTA's substations since 1994. During his deposition, Buczkiewicz spoke about the Nagle substation's automobile accident history.
Buczkiewicz said a vehicle first hit the Nagle substation in 1993. The vehicle originated from Bryn Mawr Avenue as opposed to the Kennedy expressway. On December 21, 1995, a vehicle left the Kennedy expressway and collided with the container wall, fence and the Nagle substation. On August 3, 1996, again a vehicle left the Kennedy expressway and struck the southwest corner of the Nagle substation, and on September 15, 1996, a vehicle left the Kennedy expressway, striking the substation and leaving a hole.
After the accident in September 1996, Buczkiewicz wrote a letter to the Illinois Department of Transportation (IDOT) in an effort to bring to IDOT's attention the problem of vehicles hitting the substation and raising the possibility of a guardrail being installed. Buczkiewicz said that IDOT responded by concluding that additional protection was unnecessary. Buczkiewicz stated that there have subsequently been four additional accidents involving vehicles leaving the Kennedy expressway and striking the substation. The accidents occurred in November 1996, February 1997, October 1997, and November 1998.
On April 7, 1998, Julia A. Fox was deposed. Fox worked for IDOT as its area traffic permit engineer for central Cook County. Fox stated that the concrete barrier was located on IDOT's right-of-way, which is a geographical area that is under IDOT's jurisdiction. Fox stated that the CTA needed a permit from IDOT's Bureau of Traffic in order to make any alterations to the concrete barrier. Fox said that the CTA initially requested that IDOT erect a guardrail. IDOT found a guardrail to be unwarranted. The CTA then requested a permit to build a barrier on IDOT's right-of-way, and at the time of the deposition, IDOT had yet to respond to the CTA's request.
On October 5, 1999, the discovery deposition of Fred Maamari, a structural engineer for the CTA, was taken. In 1996, Maamari was involved with implementing a guardrail to prevent vehicles from leaving the highway and striking the Nagle substation. Maamari subsequently met with an official from IDOT concerning the possibility of erecting a guardrail. He was informed by the IDOT official that ...