Appeal from Circuit Court of Sangamon County No. 08L15 Honorable April Troemper, Judge Presiding.
Justices Knecht and Holder White concurred in the judgment and opinion.
STEIGMANN, PRESIDING JUSTICE
¶ 1 This case, which is before us on appeal from the trial court's decision to grant summary judgment in favor of defendant, the City of Springfield (City), requires this court to determine whether, as a matter of law, the plaintiff, Laura DeMambro, was an "intended" user of the City property on which she was injured pursuant 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)). Plaintiff injured her ankle when she slipped into a pothole while attempting to enter her vehicle, which was lawfully parked near the curb on a city street. Because we conclude that plaintiff was an "intended" user of the portion of the city street where she was injured, we reverse and remand for further proceedings.
¶ 2 I. BACKGROUND
¶ 3 The facts of this case are simple, straightforward, and brief.
¶ 4 In July 2007, plaintiff parked her vehicle on Herndon Street, the city street parallel to the curb in front of her house. (No signs, meters, or road stripes indicated that the City permitted parking at that location; however, the City conceded below, and concedes now on appeal, that parking is permitted at that location.) After placing an item into the passenger side of her vehicle, plaintiff walked toward the driver's side of her vehicle and fell into a pothole located near the curb, injuring her ankle.
¶ 5 Plaintiff thereafter sued the City for failing to maintain its streets in a reasonably safe condition. The City later filed a motion for summary judgment, asserting, in pertinent part, that it was immune from liability under the Tort Immunity Act.
¶ 6 In July 2012, the trial court entered summary judgment in favor of the City, finding as follows:
"In the instant case, the Plaintiff argues that she was lawfully parked along the curb in front of her house and therefore was an intended and permitted user of the roadway. According to the Supreme Court[, ] *** there has to be something more than just a vehicle that is parked parallel to the curb. The Plaintiff failed to provide evidence of any physical manifestation of intent by the City *** that it intended for Herndon Street to be used by pedestrians. Furthermore, there was no evidence that the street in front of the Plaintiff's house had parking meters, designated parking stalls, or lined spaces. In the absence of any physical manifestation of intent, it would be an enormous burden to impose on the City or municipality a duty to all pedestrians who are entering or exiting a car that is lawfully parked parallel to any roadway or street within its boundaries. See Vaughn [v. City of West Frankfort, ] 166 Ill.2d [155, ] 164 [(1995)] (where '[c]rosswalks and parking lanes are areas in which municipalities manifestly intend that pedestrians walk[, '] *** and where imposing a burden with regard to streets and roadways in their entirety would be unduly expensive and burdensome).
While it may have been necessary for Plaintiff to exit the curb so that she could reach the driver side of her vehicle, necessity does not equate to an intended user. Similarly, a permitted user is not automatically an intended user. For example, presume a bicyclist was lawfully riding down the roadway on Herndon Street and hit the same pothole located next to the curb that Plaintiff *** encountered while entering her vehicle that was 'lawfully parked.' Absent any special markings or signs to show the City intended, rather than just permitted, the bicyclist to use the roadway, no duty would be imposed. See Boub [v. Township of Wayne, ]183 Ill. 2D 520 [(1998)].
Based on the foregoing cases, the Court finds that Plaintiff was merely a permitted user of the street – not an intended user. There was no evidence the [City] physically manifested its intent that Plaintiff use the street."
¶ 7 This appeal ...