Court of Appeals of Illinois, First District, Second Division
Appeal from the Circuit Court of Cook County. No. 10 L 1434. Honorable Richard J. Elrod, Judge Presiding.
In an action for the injuries plaintiff suffered when he stepped into a pothole while crossing a city street, the denial of the city's initial motion for summary judgment on the ground that a genuine issue of material fact existed as to whether the city had a duty to plaintiff with regard to the pothole was not the law of the case when the case was reassigned to a different judge and set for trial and the new judge granted the city's oral " motion for a directed finding" at a pretrial conference based on the finding that the city had no duty to plaintiff as a matter of law because the pothole was " approximately 6 inches outside the crosswalk" plaintiff was using when he fell, since the city's motion was a motion to reconsider the earlier denial of summary judgment, not a " motion for a directed finding," and under the circumstances, the law of the case doctrine did not apply, the prior denial of summary judgment was an interlocutory ruling that the trial court was not barred from reconsidering, and no duty of care existed as to the pothole that was outside the crosswalk plaintiff was using.
For Appellant: Michael Silverman, of counsel, Horwitz & Horwitz & Associates, Ltd., Chicago.
For Appellee: Stephen R. Patton, Corporation Counsel of the City of Chicago, Benna Ruth Solomon, Deputy Corporation Counsel, Myriam Zreczny Kasper, Chief Assistant Corporation, Suzanne M. Loose, Senior Counsel, David G. Priddy, Special Assistant Corporation Counsel, of counsel.
JUSTICE LIU delivered the judgment of the court, with opinion. Justices Simon and Pierce concurred in the judgment and opinion.
[¶1] Plaintiff, Randall Swain, filed a negligence action against the City of Chicago (the City) to recover for injuries that he sustained after stepping into a pothole while crossing a city street. The City moved for summary judgment, and the circuit court denied the motion on the ground that there was a genuine issue of material fact as to whether the pothole gave rise to a duty owed by the City. The case was subsequently reassigned to a different judge and set for trial. During a pretrial conference, the City made an oral " motion for a directed finding." The court granted this motion and found, as a matter of law, that the City did not owe a duty to plaintiff because the pothole was located outside of the crosswalk that plaintiff was using at the time of the incident. Plaintiff now contends that: (1) the circuit court was prohibited from entering a directed finding under the law of the case doctrine; and (2) the court erred in finding that the City did not owe him a duty as a matter of law. For the following reasons, we affirm.
[¶3] The facts of this case are not in dispute. On April 3, 2009, plaintiff was attending a conference in Chicago. About 11:50 a.m., he left the Embassy Suites hotel at 620 State Street and walked southbound to catch a train to the Palmer House. As he was walking through the intersection at Ohio Street, he stepped on the edge of a pothole with his right foot and heard his foot break with a snap. Plaintiff testified during his deposition that he was walking within the crosswalk at the time of the injury, but also acknowledged that the pothole was about five inches outside of the crosswalk. The photographs of the pothole in question confirm that the pothole, in its entirety, was located outside of the crosswalk.
[¶4] On August 30, 2010, the City filed a motion for summary judgment, asserting that it owed no duty to plaintiff because he was not an intended and permitted user of the area where the pothole was located, i.e., the area outside of the crosswalk. On December 3, 2010, the circuit court denied the City's motion on the ground that there was a " genuine issue of material fact as to whether the pothole, a part of which could be considered within the crosswalk, giving [ sic ] rise to a duty on the part of the City." (Emphasis in original.) According to the court's order, it was plaintiff's contention that " the pothole was just an inch outside the crosswalk and his foot caught it as he walked near the edge." The court explained that while plaintiff had testified that he " was walking within the crosswalk and stepped on the edge of the pothole" at the time of the incident, he had also testified that " while walking within the crosswalk, his foot stepped outside the crosswalk and encountered the edge of the pothole." (Emphases in original.)
[¶5] Following the denial of the City's motion, this case was reassigned to a new judge and set for trial. At the pretrial conference hearing on August 27, 2012, the court acknowledged the December 3, 2010 order denying summary judgment. The court then sought the parties' input on how the jury should be instructed with respect to the City's duty. The City argued that there was " no genuine issue of material fact" and that " [t]he determination of duty is a question of law." It then made an " oral motion for a directed finding," and the court granted the motion and entered judgment for the City. The court found that " the pothole was approximately 6 inches outside of the crosswalk and that the City owes no duty to Plaintiff even
though Plaintiff was an intended and permitted user inside the crosswalk for defects that are outside of the crosswalk." The court held that the City was immune from liability for defects outside of the crosswalk, as a matter of law, pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-102 (West 2012)). ...