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Diane Dunet, Independent Administrator Joan Orth, Deceased v. Clarence Simmons

April 23, 2013

DIANE DUNET, INDEPENDENT ADMINISTRATOR JOAN ORTH, DECEASED,
PLAINTIFF-APPELLANT,
v.
CLARENCE SIMMONS, VILLAGE OF OAK LAWN, A MUNICIPAL CORPORATION, AND EXELON CORPORATION, DBA COMMONWEALTH EDISON, AN ILLINOIS CORPORATION,
DEFENDANTS-APPELLEES.



Appeal from the of the Estate of Circuit Court of Cook County, Illinois No. 10 L 2834 Kathy M. Flanagan, The Honorable Judge Presiding

The opinion of the court was delivered by: Presiding Justice Harris

PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Connors and Simon concurred in the judgment and opinion.

OPINION

¶ 1 Dianne Dunet, as the independent administrator of the estate of Joan M. Orth, filed her first amended complaint against Clarence Simmons*fn1 , the Village of Oak Lawn, Illinois, and Exelon Corporation, doing business as Commonwealth Edison, an Illinois corporation (ComEd). Dunet alleged that a car driven by Simmons struck and killed Joan M. Orth (decedent) as she crossed 95th Street "at or near" its intersection with Kenton Avenue in Oak Lawn. It is undisputed that at the time of the accident, the streetlights near the intersection were inoperable and that decedent did not cross in a marked crosswalk. Dunet brought a wrongful death and survival action against Oak Lawn alleging Oak Lawn's conduct regarding the inoperable streetlights was both negligent and willful and wanton conduct. Against ComEd, Dunet brought a wrongful death and survival action based on negligence only. ComEd and Oak Lawn filed separate summary judgment motions pursuant to section 2-1005 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 2010)), which the circuit court granted. At issue is whether decedent was an intended user of 95th Street. We hold the circuit court properly entered summary judgment because decedent pedestrian was not an intended user of 95th Street at its intersection with Kenton Avenue in Oak Lawn. Therefore, Dunet failed to establish that decedent was owed a duty.

¶ 2 JURISDICTION

¶ 3 On January 27, 2012, the circuit court granted Oak Lawn's and ComEd's respective motions for summary judgment. The circuit court entered a finding that there was no just cause to delay enforcement or appeal pursuant to Illinois Supreme Court Rule 304(a). Ill. S. Ct. R. 304 (a) (eff. Feb. 26, 2010). On February 23, 2012, Dunet timely appealed. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 304(a). Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010).

¶ 4 BACKGROUND

¶ 5 On October 22, 2010, Dunet filed her first amended complaint against Simmons, Oak Lawn, and ComEd. Dunet alleged that on November 9, 2001, a car driven by Simmons struck and killed decedent as decedent crossed 95th Street "at or near" its intersection with Kenton Avenue in Oak Lawn. On that date, the overhead streetlights near the intersection were not in working order. In the counts of her complaint against Oak Lawn, Dunet alleged a wrongful death and survival action based on Oak Lawn's alleged negligent and willful and wanton conduct regarding the inoperable streetlights. Specifically, Dunet alleged Oak Lawn permitted the overhead streetlights to be inoperable, failed to repair the overhead streetlights, did not maintain the overhead streetlights, and created a hazardous condition due to the lack of illumination at the intersection. These actions, according to Dunet, proximately caused decedent's death. In the counts of her complaint against ComEd, Dunet alleged a wrongful death and survival action based on ComEd's alleged negligent conduct. Specifically, Dunet alleged Comed negligently caused an interruption of the power supply, negligently caused a short to occur in the electrical control box, negligently failed to restore the electrical supply, and negligently failed to warn pedestrians that the lights were inoperable. These actions, according to Dunet, proximately caused decedent's death. Both Oak Lawn and ComEd denied all material allegations in their respective answers to Dunet's complaint.

¶ 6 On September 19, 2011, Oak Lawn and ComEd each filed separate motions for summary judgment pursuant to section 2-1005 of the Code. 735 ILCS 5/2-1005 (West 2010). Oak Lawn argued that it did not owe decedent a duty because she was not an intended and permitted user of the street where the accident occurred according to section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-102(a) (West 2010)). Oak Lawn pointed out that decedent did not cross 95th Street at a marked crosswalk. Additionally, Oak Lawn asserted that the inoperable streetlights were not the proximate cause of the accident. Oak Lawn acknowledged that the issue of proximate cause is typically determined by the trier of fact, but argued that summary judgment is appropriate where, as in this case, the facts show that the plaintiff would never be entitled to recover. According to Oak Lawn, the darkened conditions may have made it more difficult to see, but the inoperable lighting only "presented an opportunity for the accident but did not cause the accident." As such, Oak Lawn argued that the inoperable streetlights were a condition, but not the cause of the accident. Oak Lawn further argued that the intervening negligence of Simmons, the driver of the automobile, and decedent, the pedestrian, severed any negligence on the part of Oak Lawn. Specifically, decedent crossed 95th Street outside of a crosswalk and failed to yield the right of way to the oncoming traffic; Simmons, had his headlights turned on and still failed to see decedent until after impact. Oak Lawn attached to its motion a copy of the first amended complaint, its answer, and deposition testimony from Simmons, Robert Weinert, Jr., and Michael Wilson.

¶ 7 Simmons, a retired truck and bus driver, testified that the accident in question occurred about 5:45 p.m. on November 9, 2009. His car, including his headlights, was in good working order. It was dark outside. Simmons was traveling westbound on 95th Street in the left hand lane, which was the lane closest to the center line. He was traveling at about 30 miles per hour, which was the speed limit on 95th Street. At Kenton Avenue, Simmons struck decedent. He never saw her before impact. Simmons applied the brakes and his car skidded until it stopped. There were skid marks on the road. Decedent was either thrown off or fell off the front of Simmon's car. Decedent's body came to rest about 19 feet ahead of Simmon's car.

¶ 8 Simmons agreed that the area was very dark at the time of the occurrence and that the streetlights were out both to the east and to the west of 95th Street. Both headlights of Simmon's car were turned on at the time of the collision. He agreed that the lights from the nearby car dealership did not provide much light to the intersection. Simmons answered "Yes" when asked the following questions: whether decedent crossed at the intersection as opposed to "crossing in the middle of the block or walking in the middle of the block "; whether "it was just too dark to be able to see a pedestrian"; and whether he kept "a safe and proper lookout" while driving.

¶ 9 Weinert testified that at the time of the accident, he worked at the car dealership, located on 95th Street, as "a porter or lot man." He thought the accident occurred at approximately 5:30 in the evening. The weather was cold that day, but there was not any snow, and conditions were "[f]airly dry." It was dark and there was no natural light present. He described the lighting conditions as "extremely poor" because "[t]he lights on 95th street were out." Weinert could not recall if it was cloudy or not. Weinert testified that the dealership has lights that were "bright enough to light up our own lot," but did not, however, illuminate 95th Street. He could not recall if the streetlights were also out on Kenton Avenue.

¶ 10 Weinert first saw decedent when he was walking eastbound on 95th Street, but it was too dark "to put a face or body together." At the time, he was with Michael Wilson, "walking the lot," both to look for his misplaced cell phone and because the dealership would "rearrange [its] used car display everyday." He described the accident as such:

"Q. As you're normally walking down eastbound 95th street, what drew your attention to this pedestrian?

A. She was the only one out there besides us, okay, and to ultimately see her begin to cross the road, but I looked away, I was not paying attention at that point. I figure, you know, people cross there all the time. Then what made me turn back up is when I heard the impact.

Q. Okay. Let's take a step back in terms of you say ' people cross there all the time.' Where did you ...


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