Court of Appeals of Illinois, First District, Fifth Division
In an action for the broken leg plaintiff suffered when she tripped and fell on a hole in a metal plate that was in the street she was crossing, summary judgment was properly entered for defendant city on the ground that the path chosen by plaintiff was outside the marked crosswalk and she was not an intended and permitted user of the spot where she fell, notwithstanding her contention that the crosswalk lines were covered by snow at the time of her injury, since the metal plate was clearly not within the marked crosswalk, the facts did not present an issue of an unmarked crosswalk, and the fact that crossing outside the crosswalk was foreseeable did not change the intended use.
Appeal from the Circuit Court of Cook County, No. 08-L-14214; the Hon. William Gomolinski, Judge, presiding.
Peter F. Higgins, of Lipkin & Higgins, of Chicago, and Lynn D. Dowd, of Law Offices of Lynn D. Dowd, of Naperville, for appellant.
Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Julian N. Henriques, Jr., Assistant Corporation Counsel, of counsel), for appellee.
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. Plaintiff 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 ...