Court of Appeals of Illinois, First District, Second Division
DIANE DUNET, Independent Administrator of the Estate of JOAN ORTH, Deceased, Plaintiff-Appellant,
CLARENCE SIMMONS, VILLAGE OF OAK LAWN, a Municipal Corporation, and EXELON CORPORATION, DBA COMMONWEALTH EDISON, an Illinois Corporation, Defendants-Appellees.
In an action for the fatal injuries suffered by plaintiff’s decedent when she was struck by defendant’s vehicle while crossing a street in defendant village, summary judgment was properly entered for the village and defendant power company, notwithstanding the fact that the streetlights were not operating at the location of the accident, since decedent was not in a marked crosswalk when she was hit, she was not shown to be an intended user of the street, defendants owed her no duty, and the inoperable streetlights were merely a condition, not a proximate cause, of her death.
Appeal from the Circuit Court of Cook County, No. 10-L-2834; the Hon. Kathy M. Flanagan, Judge, presiding
Morici, Figlioli & Associates, of Chicago (James J. Morici, Jr., and Michael G. Miller, of counsel), for appellant.
Ripes, Nelson, Baggot & Kalobratsos, P.C. (Michael J. Ripes, of counsel), Querrey & Harrow, Ltd. (David Flynn and Brandon K. Lemley, of counsel), Johnson & Bell, Ltd. (John W. Bell, Robert R. McNamara, and Meghan M. Sciortino, of counsel), Schopf & Weiss, LLP (Steven A. Weiss and Kristen E. Hudson, of counsel), all of Chicago, for appellees.
Panel PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Connors and Simon concurred in the judgment and opinion.
HARRIS PRESIDING JUSTICE
¶ 1 Dianne Dunet, as the independent administrator of the estate of Joan M. Orth, filed her first amended complaint against Clarence Simmons, 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 ...