Gabriel v. City of Edwardsville

604 N.E.2d 565, 237 Ill. App. 3d 649, 178 Ill. Dec. 309, 1992 Ill. App. LEXIS 2006
CourtAppellate Court of Illinois
DecidedDecember 4, 1992
Docket5-91-0402
StatusPublished
Cited by14 cases

This text of 604 N.E.2d 565 (Gabriel v. City of Edwardsville) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gabriel v. City of Edwardsville, 604 N.E.2d 565, 237 Ill. App. 3d 649, 178 Ill. Dec. 309, 1992 Ill. App. LEXIS 2006 (Ill. Ct. App. 1992).

Opinions

JUSTICE H. LEWIS

delivered the opinion of the court:

Plaintiff, Mary Gabriel, brought this action against defendant, City of Edwardsville, to recover injuries she sustained when she walked into the street about five or six steps and tripped over a water main cover while on her way to her son’s house. Plaintiff was not walking within a crosswalk when she fell. Plaintiff contends that defendant had a duty to maintain the street and that its failure to repair the raised water main cover created a dangerous condition. On August 29, 1990, the defendant moved for summary judgment. One of defendant’s alleged grounds for summary judgment was that a municipality owes no duty to pedestrians crossing the street outside of the crosswalk. The circuit court denied the defendant’s motion for summary judgment. Subsequently, at the close of the plaintiff’s case, the defendant moved for a directed verdict, alleging that the plaintiff had failed to show that the City of Edwardsville breached a duty of care. The circuit court denied the defendant’s motion. Two days later, at the close of all of the evidence, the defendant renewed its motion for a directed verdict. Once again the circuit court denied the defendant’s motion. On April 11, 1991, the jury returned a verdict in favor of the plaintiff for $14,361.14, and judgment was entered accordingly. The defendant filed a post-trial motion on May 3, 1991. On May 17, 1991, the circuit court denied the defendant’s post-trial motion.

Defendant appeals, claiming that the City of Edwardsville had no duty to safeguard the plaintiff, a pedestrian, who was using the street as a walkway and was not within the crosswalk.

Plaintiff counters with the argument that a duty existed because she was an intended and permitted user of the street. Because the sidewalk ended on the side of the street in which she was walking, she argues she was required to walk across the street. This argument is based upon section 3—102(a) of the Local Governmental and Governmental Employees Tort Immunity Act, which states as follows:

“Except as otherwise provided in this Article, a local public entity has the 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 whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such condition.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 85, par. 3—102(a).)

Thus, for a pedestrian to be protected by this statute, he must be a permitted and intended user of the property under control of the city. (Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 422, 592 N.E.2d 1098, 1101.) Further, to establish a cause of action for negligence, the plaintiff must show that the defendant owed a duty of care, the defendant breached the duty, and an injury was proximately caused by the breach. (Wojdyla, 148 Ill. 2d at 421, 592 N.E.2d at 1100.) We agree with the defendant that no duty existed; therefore, we reverse.

Defendant has cited several cases in support of its view that the plaintiff was not an intended and permitted user of the street. The case which is most analogous to the case at bar is Greene v. City of Chicago (1991), 209 Ill. App. 3d 311, 567 N.E.2d 1357. In Greene, the plaintiff, a pedestrian, fell into a pothole in the street while on his way to a friend’s house. The plaintiff was not walking within a crosswalk when he fell. The circuit court granted summary judgment for the defendant and stated that the streets are made for automobiles, not for pedestrians, except at intersections where there are marked or unmarked crosswalks. The appellate court agreed with the circuit court and held that a municipality owes no duty to warn pedestrians of any hazards outside of the crosswalk when a pedestrian is not using the crosswalk. (Greene, 209 Ill. App. 3d at 313, 567 N.E.2d at 1358.) Several other cases have held likewise. (Curatola v. Village of Niles (1992), 230 Ill. App. 3d 743, 746, 598 N.E.2d 945, 946; Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, 913, 556 N.E.2d 660, 661; Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 331, 527 N.E.2d 572, 573; Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 831, 502 N.E.2d 357, 360.) When pedestrians use the public streets as walkways, the law imposes no general duty upon a municipality to safeguard pedestrians. (Greene, 209 Ill. App. 3d at 313, 567 N.E.2d at 1358; Vlahos, 198 Ill. App. 3d at 913, 556 N.E.2d at 661; Mason, 173 Ill. App. 3d at 332, 527 N.E.2d at 573; Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 478, 300 N.E.2d 590, 593.) To impose such a duty on a municipality would overextend its function. (Curatola, 230 Ill. App. 3d at 745, 598 N.E.2d at 946; Greene, 209 Ill. App. 3d at 313, 567 N.E.2d at 1358; Mason, 173 Ill. App. 3d at 332, 527 N.E.2d at 573; Deren, 13 Ill. App. 3d at 478, 300 N.E.2d at 593.) Hence, the law is clear that a municipality owes no duty to a pedestrian crossing a public street outside of the crosswalk. Greene, 209 Ill. App. 3d at 313, 567 N.E.2d at 1358; Vlahos, 198 Ill. App. 3d at 913, 556 N.E.2d at 661; Mason, 173 Ill. App. 3d at 332, 527 N.E.2d at 573; Deren, 13 Ill. App. 3d at 478, 300 N.E.2d at 593.

The street is to be used for vehicular traffic, not pedestrians (Risner, 150 Ill. App. 3d at 831, 502 N.E.2d at 359), and it is reasonable that a municipality would foresee that only vehicular traffic would use the street (Curatola, 230 Ill. App. 3d at 746, 598 N.E.2d at 947; Mason, 173 Ill. App. 3d at 332, 527 N.E.2d at 573), while pedestrians would use the crosswalk to cross to the other side of a street (Mason, 173 Ill. App. 3d at 332, 527 N.E.2d at 573). Even when a street is continuously used by pedestrians, we find no Illinois authority which permits the conversion of the street into a sidewalk. (Deren, 13 Ill. App. 3d at 477, 300 N.E.2d at 593.) Further, a municipality has no duty to install sidewalks; therefore, it is unreasonable to require a municipality to continue an existing sidewalk. (Frakes v. Martin (1987), 151 Ill. App. 3d 676, 678, 503 N.E.2d 556, 558; Best v. Richert (1979), 72 Ill. App. 3d 371, 374, 389 N.E.2d 894, 896.) Thus, the plaintiff was not an “intended” user of the street because the streets are designated for use by vehicular traffic— not pedestrians. (Ramirez v. City of Chicago (1991), 212 Ill. App. 3d 751, 753, 571 N.E.2d 822, 826.) Therefore, we need not determine whether the plaintiff was a “permitted” user of the street because to prove that the City owed a duty, the plaintiff must show that she was both an “intended” and a “permitted” user of the street. Ramirez, 212 Ill. App.

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Gabriel v. City of Edwardsville
604 N.E.2d 565 (Appellate Court of Illinois, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
604 N.E.2d 565, 237 Ill. App. 3d 649, 178 Ill. Dec. 309, 1992 Ill. App. LEXIS 2006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gabriel-v-city-of-edwardsville-illappct-1992.