Appeal from the Circuit Court of Cook County 08 L 14214 Honorable Edward W. Gomolinski, Judge Presiding.
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Palmer and Taylor concurred in the judgment and opinion.
¶ 1 Plaintiff Yvonne Harden appeals the trial court's grant of summary judgment in favor of the defendant the City of Chicago (City) on her personal injury action which alleged that the City was negligent when she slipped and broke her leg on a large metal plate while crossing a street in Chicago. On appeal, she argues that she was an intended and permitted user of the street when she crossed near the crosswalk, which was obscured by falling snow and heavy pedestrian traffic, and as a result, the City was liable for her injuries.
¶ 2 In December 2008, plaintiff filed her initial complaint against the City. Plaintiff filed an amended complaint in October 2010. She raised the same claims against the City and also named three new defendants, MCI Metro Access Transmission Services (MCI), LLC, Level 3 Communications, LLC (Level 3), and John Burns Construction Company (John Burns).
¶ 3 Following discovery, including depositions, interrogatories and other filings, the facts of the case are as follows. At approximately 8 a.m. on December 1, 2008, plaintiff exited a Chicago Transit Authority (CTA) bus at the northeast corner of Adams Street and upper Wacker Drive. Plaintiff worked at 200 South Wacker, located on the southwest corner of the intersection. She intended to cross south on Adams and then west on Wacker.
¶ 4 Plaintiff testified at her deposition that there was a "dusting" of snow on the ground and it just started to snow heavily. Plaintiffs stated that there was no ice on the ground and the amount of snow was less than half an inch. When asked if she could not designate the marked crosswalk, plaintiff could not recall "if every area of everything [the marked crosswalk] was covered. But it was a dusting covering the street and the sidewalk of snow." Plaintiff also said that there was heavy pedestrian traffic. Plaintiff testified that she was wearing black leather boots with rubber soles that had grips for snow. The boots had an inch to an inch and a half heel, but the heel was wide and was not a pump heel. Plaintiff denied that she had any problem with vision despite the snow.
¶ 5 Plaintiff testified at her deposition that there was a metal plate on the street at that intersection. The plate had been there for at least a year. The plate was approximately four feet wide, six feet long and two inches thick. The plate had two holes, each approximately four inches in diameter, located in the center. Plaintiff said that the plate was right next to the curb at the northeast corner of the intersection. She described the crosswalk as having three lines with one line as the stop line. She stated that the metal plate "actually covers the one of the two lines, not the stop line. [T]he metal plate is between the stop line and the two crosswalk lines."
¶ 6 Plaintiff stepped off the curb to cross Adams with the flow of pedestrian traffic when the pedestrian light was in her favor to cross. Plaintiff stated that she was in the middle of the pedestrian traffic with people on all sides of her. She started to cross the street based on her prior experience at that intersection. Plaintiff admitted that she would have been crossing "between the stop line and the furthest east marked white line of the crosswalk." She stepped down with her left foot from the curb and then her right foot. Her right foot started to slip and it "got caught" in a hole of the metal plate. She stated that she could not "honestly tell which hole it was, " but she believed "it was the hole to the left, " which was further east. Plaintiff heard a crack and felt extreme pain. She felt too much pain to lift her foot so she laid on the ground and moved herself out of the street.
¶ 7 Plaintiff had been crossing the street with a colleague, Deron White. White called an ambulance after her fall. Plaintiff was taken to Northwestern Hospital and treated for a broken tibia, fibula, and ankle.
¶ 8 In her first amended complaint, plaintiff alleged that the City "had a duty to exercise ordinary care to maintain the streets under its ownership, management, maintenance, and/or control in a reasonably safe condition." The City should have known that the location where plaintiff stepped on Adams Street "was in a defective or dangerous condition because of the steel plate, which condition posed an unreasonable risk of injury to persons lawfully walking across Adams Street, " including plaintiff. As a proximate cause of one or more negligent acts and/or omissions by the City, plaintiff sustained injuries of a personal and pecuniary nature.
¶ 9 In January 2012, the City filed a motion for summary judgment. In its motion, the City argued that it did not owe plaintiff a duty of care because she was not an intended and permitted user of the street when she crossed Adams Street outside of the marked crosswalk lines pursuant to section 3-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-102 (West 2008)). The City based this argument on the location of the metal plate outside of the marked crosswalk lines, which was identified by plaintiff at her deposition.
¶ 10 In response, plaintiff asserted that she was unable to see the marked crosswalk lines because the snow and the high volume of pedestrian traffic. She contended that the case should be considered an unmarked crosswalk case and she was within the statutory definition of a crosswalk, and even if she was outside the crosswalk, she was an intended user of the street where she crossed. She attached her own affidavit and an affidavit from White to her response. In her affidavit, plaintiff stated that she could not see the crosswalk lines because of snow and pedestrians. She said she knew she stepped into the street where the crosswalk lines were located based on her familiarity with that corner.
¶ 11 White stated in his affidavit that he was behind plaintiff as they started to cross the intersection. He described the conditions of the intersection as "it was snowing heavily and the sidewalks, streets and crosswalks were covered with snow. We were also surrounded by other pedestrians in front, behind and on each side of us." He said that he could not see the lines of the crosswalk, but he knew he was in the area of the crosswalk because he was "between the end of the curb for Wacker to the west, and the building line for the building on the northeast corner of Adams and Wacker to the east." He was familiar with where the crosswalk was located because he had traveled this way many times. He observed plaintiff take one or two steps, make a painful cry, stop suddenly and go down. He "did not look to see exactly where she fell, whether she was in between the lines of the crosswalk or not. To the best of [his] recollection, and based upon [his] prior experience at this intersection, [plaintiff] stepped off the curb in the area where the crosswalk lines would be if they were visible."
¶ 12 In February 2012, the trial court granted the City's summary judgment motion in a written order. The court found that the intersection contained a marked crosswalk and plaintiff "crossed somewhere before the stop line where the crosswalk lines are." Plaintiff crossed on the metal plate. Plaintiff testified that a photograph exhibit accurately showed the condition and location of the metal plate, but the exhibit "clearly shows that the metal plate which plaintiff alleges caused her fall was not within the marked crosswalk." Further, the court noted that plaintiff's response and affidavits did "little to contradict plaintiff's prior clear and unequivocal admissions and testimony especially with respect Harden's clear identification of the location of the plate" in her deposition. The ...