Court of Appeals of Illinois, First District, Fourth Division
LORRAINE PATTULLO-BANKS and GEORGE BANKS, Plaintiffs-Appellants,
THE CITY OF PARK RIDGE, a Municipal Corporation, Defendant-Appellee
Opinion Upon Denial of Rehearing filed September 4, 2014.
Appeal from the Circuit Court of Cook County. 12 L 1459. Honorable Lynn M. Egan, Judge Presiding.
In an action against defendant city for the injuries plaintiff suffered when she was walking on a sidewalk, encountered a section of the sidewalk that was blocked by snow and ice the city had plowed onto the sidewalk from the city streets during a snowstorm and was struck by a car when she was forced to cross a street where there was no marked crosswalk, the trial court erred in entering summary judgment for the city on the grounds that plaintiff was not an intended user of the street where she was hit by the car and that the city was immune from liability under the Tort Immunity Act because the city's duty to exercise ordinary care to maintain the street in a reasonably safe condition only applied to intended or permitted users, and since plaintiff alleged that the city breached its duty to exercise ordinary care to maintain the sidewalk, plaintiff's status as an intended or permitted user was irrelevant; therefore, the entry of summary judgment for the city was reversed and the cause was remanded for further proceedings.
For Appellants: Peter M. King, William H. Jones, Canel, King & Jones, of Chicago.
For Appellee: Jay S. Judge, Thomas N. Osran, Judge, James & Kujawa, LLC, of Park Ridge.
JUSTICE HOWSE delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Epstein concurred in the judgment and opinion.
[¶1] Plaintiffs Lorraine Pattullo-Banks and George Banks appeal from an order of the circuit court of Cook County entering summary judgment in favor of defendant, the city of Park Ridge, in the lawsuit they filed to recover damages for personal injuries suffered by Lorraine Pattullo-Banks. In the complaint, plaintiffs alleged that the city of Park Ridge breached its duty to maintain its property in a reasonably safe condition for intended and permitted users of the sidewalk, which caused Pattullo-Banks' injuries. Plaintiffs' complaint alleged that Pattullo-Banks was walking near a train station on a city of Park Ridge sidewalk located along Touhy Avenue when she encountered an unnatural accumulation of snow and ice which obstructed her pathway. Plaintiffs alleged that the city of Park Ridge created the obstruction during snow removal operations when it plowed snow from the public streets onto the sidewalk, making the sidewalk impassable. Because the sidewalk was obstructed, the complaint alleges, in order to reach her destination Pattullo-Banks was forced to cross Touhy Avenue at the point of the obstruction, where there was no marked crosswalk. Pattullo-Banks was injured when she was struck by a car while attempting to cross the street. Plaintiffs sought damages for Lorraine's personal injury and George Banks sought damages for loss of consortium.
[¶2] The city of Park Ridge (the City) filed a motion for summary judgment. The City argued that section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-101 et seq. (West 2008)) provides that a local public entity has a duty to exercise ordinary care to maintain its property in a reasonably safe condition only for the ordinary use of intended or permitted users. See 745 ILCS 10/3-102(a) (West 2008). The City argued it is immune from the damages claims because Pattullo-Banks was not an intended or permitted user of the street where her injury occurred. In response, plaintiffs argued that the city of Park Ridge did owe Pattullo-Banks a duty because she was an intended and permitted user of the sidewalk.
[¶3] The trial court agreed with the city of Park Ridge and dismissed the complaint, finding that the City was immune from liability for Pattullo-Banks' injuries because Pattullo-Banks was not an intended user of Touhy Avenue where she was injured.
[¶4] In most of the cases cited by the parties construing section 3-102(a), the breach of the duty to exercise ordinary care to maintain property in a reasonably safe condition and the alleged resulting injury occurred on the same property. However, in this case the breach of duty occurred on the sidewalk but the injury occurred in the street. This appeal presents us with the following issue: Where a public entity allegedly breached its duty to maintain its property in a reasonably safe condition and the public entity asserts it is immune under section 3-102(a), is the plaintiff's status as an intended or permitted user determined by the place where the alleged breach of duty to maintain property occurs or where plaintiff's injury occurs? Based on our reading of the statute we find that where a plaintiff alleges that a municipality breached its duty to use ordinary care to maintain its property and the defendant invokes section 3-102(a) of the Tort Immunity Act as a defense, the
issue of whether the plaintiff was an intended and permitted user is to be determined based upon the property for which the city is alleged to have breached its duty rather than the place where the injury occurred. As such, we find the trial court applied the wrong standard here when it dismissed plaintiffs' claim based on its finding that Pattullo-Banks was not an intended or permitted user of the street, which was merely the place where her injury occurred. Accordingly, we reverse the trial court's grant of summary judgment in favor of the city of Park Ridge, and remand this matter to the trial court for further proceedings.
[¶6] This is the second time this case has been appealed. Plaintiffs filed the first appeal from the trial court's dismissal of the city of Park Ridge, as well as other defendants in the case, pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2008)). Banks v. City of Park Ridge, 409 Ill.App.3d 1151, 2 N.E.3d 662, 377 Ill.Dec. 746 (2011) (unpublished order under Supreme Court Rule 23). We found that the trial court improperly dismissed those claims. Specifically, we found that for purposes of a section 2-619(a)(9) motion, it was insufficient for the city of Park Ridge to attach an affidavit stating that there was no crosswalk where Pattullo-Banks was struck by a car because that merely rebutted plaintiffs' well-pled allegation that there was an unmarked crosswalk where she was struck by a car. Thus, because the city of Park Ridge failed to offer an affirmative matter to negate the claim in plaintiffs' complaint, we reversed the trial court's dismissal pursuant section 2-619(a)(9) and remanded the matter for further proceedings. In so ruling, we noted that we were not addressing the merit of plaintiffs' allegations that the city of Park Ridge owed Pattullo-Banks a duty.
[¶7] Following remand, plaintiffs amended their complaint. Count III of plaintiffs' second amended complaint, titled " Breach of Duty, Negligence" against the city of Park Ridge alleges that the city of Park Ridge owed Pattullo-Banks numerous duties that it breached, which included: a duty not to create or aggravate an unnatural accumulation of snow and ice on the public walkways; a duty to provide known and permitted users of the train station with safe and reasonable means of egress from the train station; a duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people who Park Ridge intended and permitted to use the property; and a duty to warn commuters and other pedestrians that if they exited the train station onto the south side of Touhy Avenue, there would be no safe way to get to the north side.
[¶8] On April 2, 2013, the city of Park Ridge filed a motion for summary judgment. In the motion, the City argued that it owed no duty to Pattullo-Banks pursuant to section 3-102(a) of the Tort Immunity Act because she was not an intended user of Touhy Avenue where she was struck by a car. In support of its motion, the City offered the testimony of a Park Ridge police sergeant and accident reconstructionist Kirk Ashelman, the testimony of City Engineer Sarah Mitchell, and numerous photographs of the property in question. Both witnesses offered testimony ...