Appeal from the Circuit Court of Cook County No. 01 L 5447 Honorable Kathy M. Flanagan, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cahill
OPINION MODIFIED ON DENIAL OF REHEARING July 18, 2005
Plaintiff Don Mazin was injured while standing on a tree grate outside Cellular Field, formerly known as Comiskey Park, in Chicago, Illinois. Plaintiff filed a negligence action against the City of Chicago (City), the Illinois Sports Facilities Authority (Authority) and Chicago White Sox, Ltd., and Chi Sox Corporation (collectively, the White Sox). The trial court granted summary judgment for all defendants and plaintiff appeals. We affirm in part, reverse in part and remand for further proceedings.
The pleadings, depositions and photographs in the record reveal the following. The paved sidewalk surrounding Cellular Field contains several rectangular cutouts in which trees grow. Metal grates surround the base of each tree and cover the soil. The grates contain numerous smaller openings that radiate outward from the center in a web-like pattern.
Plaintiff and his friends attended a night game at Cellular Field on May 12, 2000. They left the park at around 11:30 p.m. At some point, plaintiff became separated from his friends and stopped next to a tree outside the park. Plaintiff stood on the metal grate surrounding the tree while he waited for his friends. The space between the center of the grate and the tree trunk measured approximately six to seven inches. The grate was flush with the sidewalk and approximately four to five inches above the soil.
As plaintiff waited by the tree, Ryan Dwyer appeared from behind plaintiff and called his name. Plaintiff turned and grabbed the tree. As he turned, plaintiff's right foot landed between the grate and the tree. Dwyer tapped plaintiff lightly on the left shoulder, causing plaintiff to fall with his foot beneath the grate. Dwyer then fell onto plaintiff, causing plaintiff to sustain serious injury to his foot.
Plaintiff filed a negligence action against defendants. The City moved for summary judgment. The City argued: (1) it was not liable to plaintiff because the area where plaintiff fell was a parkway and was not unreasonably dangerous as a matter of law; and (2) plaintiff's injury was not proximately caused by a condition on the land. The remaining defendants joined in the City's motion. The trial court found:
"The area of the tree and the decorative grate is a parkway
pursuant to the rationale in the case of Barnhisel v. Village
of Oak Park, [311 Ill. App. 3d 108, 724 N.E.2d 194 (1999).]
Thus, it is subject to a lesser standard of care tha[n] what
is applicable to sidewalks. A parkway is reasonably safe
unless the complained of condition is in the nature of a
pitfall, trap, snare or other like obstruction. See Marshall
v. City of Centralia, [143 Ill. 2d 1, 570 N.E.2d 315 (1991)].
In the instant case, the condition of the tree grate has not
been shown to amount to a pitfall, trap, snare or other like
obstruction and, as such, it is not unreasonably dangerous.
Furthermore, while the [c]court need not even reach the issue
of proximate cause, the evidence shows that the act of
[p]laintiff's friend hitting him and causing him to step into
the hole in the grate and fall was not foreseeable and thus,
an intervening act."
The trial court entered summary judgment for all defendants. On appeal, plaintiff argues: (1) judgment for the City was improper because the area where plaintiff fell was a sidewalk and not a parkway; (2) assuming the area is deemed a parkway, the City breached its duty to plaintiff by failing to maintain the area free of pitfalls, traps, snares or the like; (3) the trial court erred by applying the same standard of care to the City as it did to the remaining defendants; and (4) a genuine issue of material fact exists as to which defendant owns and maintains the area where plaintiff was injured. Summary judgment is proper where the pleadings, depositions and admissions on file, when viewed in the light most favorable to the nonmoving party, reveal there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Jinkins v. Lee, 209 Ill. 2d 320, 329, 807 N.E.2d 411 (2004). The granting of summary judgment is reviewed de novo. Jinkins, 209 Ill. 2d at 329.
We address plaintiff's arguments out of sequence and begin with his contention that summary judgment was improper because a genuine issue of material fact exists as to the ownership and control of the public walkway surrounding Cellular Field. Plaintiff's argument addresses the duty element of his cause of action. For whatever reason, defendants have not disputed ownership or control of the property, so the question of duty is not before us. Defendants have argued in both the trial court and in this court that they are entitled to judgment as a matter of law, not because they do not owe a duty to plaintiff, but because plaintiff failed to present evidence of breach, a necessary element of plaintiff's cause of action. Summary judgment is appropriate where a plaintiff fails to establish any element of his cause of action. Morris v. Margulis, 197 Ill. 2d 28, 35, 754 N.E.2d 314 (2001).
We next address plaintiff's argument that the standard of care applicable to the City is distinguishable from the standard of care that applies to the remaining defendants. Plaintiff correctly notes that liability for the City is governed by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/1-101 et seq. (West 2000)). Plaintiff argues that liability for the remaining defendants is governed by section 2 of the Premises Liability Act (740 ILCS 130/2 (West 2000)). Defendants do not dispute these points. The parties, for reasons unbeknown to us, have overlooked two points worth mentioning.
First, the amended Premises Liability Act was invalidated by reference in Best v. Taylor Machine Works, 179 Ill. 2d 367, 378, 689 N.E.2d 1057 (1997) (declaring Public Act 89--7 (Pub. Act 89--7, eff. March 9, 1995) unconstitutional). Section 343 of the Restatement (Second) of Torts (Restatement (Second) of Torts *343 (1965)) has been adopted by our supreme court and governs premises liability in Illinois. See LaFever v. Kemlite Co., 185 Ill. 2d 380, 389-90, 706 N.E.2d 441 (1998). Because the standard of care imposed under section 343 of the Restatement is identical to the standard of care imposed under the amended Premises Liability Act--that of "reasonable care"--our analysis of plaintiff's argument is not affected.
Second, the Authority is a "local public entity" within the meaning of the Tort Immunity Act and may avail itself of the protections afforded by the Act. See 70 ILCS 3205/4 (West 2000) (defining the Authority as "a political subdivision, unit of local government, body politic and municipal corporation"); 745 ILCS 10/1-206 (West 2000) (defining "local public entity" as a "municipal corporation *** and all other local governmental bodies"). But the Authority did not assert the Act as an affirmative defense at trial or on appeal and has waived it on this ground. See Martin v. Chicago Housing Authority, 264 Ill. App. 3d 1063, 1075, 637 N.E.2d 506 (1994) ("governmental tort immunity under the Tort Immunity Act must be raised and pled as an affirmative defense or else it is waived").
We next address the substance of plaintiff's argument that the trial court erred in granting summary judgment to all defendants without differentiating between the standards of care owed by the City and the remaining defendants. Plaintiff maintains that the standard of "ordinary" care under section 3-102(a) of the Tort Immunity Act is different from that of "reasonable" care imposed under premises liability law. Plaintiff does not cite to a case where a decision ...