Sisk v. Williamson County

632 N.E.2d 672, 261 Ill. App. 3d 49, 198 Ill. Dec. 342

• Court: Appellate Court of Illinois
• Decided: April 13, 1994
• Docket: 5-92-0546
• Status: Published

Opinions

JUSTICE MAAG

delivered the opinion of the court:

Plaintiff, Gregory L. Sisk, brought this action against defendant, Williamson County, to recover for injuries suffered when he fell from a concrete bridge to a creek bed spanned by the bridge. Sisk alleged in his fourth amended complaint that on September 30, 1989, he was driving his automobile on the Williamson County/Franklin County line road. As he crossed a bridge on the roadway, he collided with the bridge for reasons not disclosed in the record. After the collision, he exited his vehicle to inspect the damage. Sisk claims that during the inspection, his view of the bridge, right of way, and roadway was obscured by weeds which had grown in and around the bridge. This condition allegedly prevented him from observing the edge of the bridge and caused him to fall. Williamson County, in its brief, characterized the location of the accident as a "rural country road.” (Emphasis added.)

In response to these allegations, Williamson County filed a motion to dismiss pursuant to section 2—615 of the Civil Practice Law (Ill. Rev. Stat. 1991, ch. 110, par. 2—615 (now 735 ILCS 5/2—615 (West 1992)). The county claimed that the complaint failed to allege sufficient facts to give rise to a duty of care owed to Sisk. According to the county, the facts as pleaded fail to demonstrate that Sisk was an intended and permitted user of the bridge, roadway, and right of way at the time of the fall. Stated simply, the county claimed that it had no duty to make the road, bridge, and right-of-way safe for foot travel.

The circuit court, after considering the complaint, motion, and authorities cited, granted the motion to dismiss, and this appeal ensued.

A motion to dismiss under section 2—615 admits all well-pleaded facts in the complaint for purposes of the motion. (Barber-Colman Co. v. A&K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 603 N.E.2d 1215.) "No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet.” Ill. Rev. Stat. 1991, ch. 110, par. 2—612(b) (now 735 ILCS 5/2—612 (West 1992)).

We do not believe that there is any question regarding the nature of the claim that Sisk was attempting to plead. The sole issue before us is as follows: Accepting as true, for purposes of the motion to dismiss, all of the well-pleaded facts in the complaint, does the complaint allege facts which give rise to a duty owed by the county to Sisk? We answer the question in the affirmative.

The parties have briefed extensively the issue of whether a duty of care was owed by Williamson County to maintain the road, bridge, and right-of-way in a condition suitable for pedestrian use. Sisk claims such a duty exists, and the county denies that claim. At the heart of this dispute is section 3—102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1991, ch. 85, par. 3—102(a) (now 745 ILCS 10/3—102(a) et seq. (West 1992))). It provides:

"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 reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” Ill. Rev. Stat. 1991, ch. 85, par. 3—102(a) (now 745 ILCS 10/3—102(a) (West 1992)).

This statute has been the subject of numerous appellate and supreme court decisions, particularly in relation to streets and roads. The majority of these decisions focus on who is an "intended and permitted” user of a given street or road. Intended and permitted status is crucial since unless such status exists no duty of care arises. Rather than lengthen this decision with yet another discussion of these cases, we simply refer the parties to two recent opinions of our supreme court which extensively explain the principles at issue. See Curatola v. Village of Niles (1993), 154 Ill. 2d 201, 608 N.E.2d 882; Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 592 N.E.2d 1098.

Despite the guidance provided by Curatola and Wojdyla, other matters not discussed by those cases must also be considered. Section 11—1007 of the Illinois Vehicle Code (Ill. Rev. Stat. 1991, ch. 95½, par. 11—1007 (now 625 ILCS 5/11—1007 (West 1992))) provides:

"(b) Where a sidewalk is not available, any pedestrian walking along and upon a highway shall walk only on a shoulder, as far as practicable from the edge of the roadway.

(c) Where neither a sidewalk nor a shoulder is available, any pedestrian walking along and upon a highway shall walk as near as practicable to an outside edge of a roadway, and, if on a two-way roadway, shall walk only on the left side of the roadway.” Ill. Rev. Stat. 1991, ch. 95½, pars. 11—1007(b), (c) (now 625 ILCS 5/11— 1007(b), (c) (West 1992)).

Clearly, the legislature was aware that pedestrians make use of the highways of this State. This is manifest due to the mere existence of the statute.

While bridges are not specifically mentioned, a "highway” is defined by the Illinois Highway Code (Ill. Rev. Stat. 1991, ch. 121, par. 1—101 et seq. (now 605 ILCS 5/1—101 et seq. (West 1992))) as:

"any public way for vehicular travel which has been laid out in pursuance of any law of this State, or of the Territory of Illinois, or which has been established by dedication, or used by the public as a highway for 15 years, or which has been or may be laid out and connect a subdivision or platted land with a public highway and which has been dedicated for the use of the owners of the land included in the subdivision or platted land where there has been an acceptance and use under such dedication by such owners, and which has not been vacated in pursuance of law. The term 'highway’ includes rights of way, bridges, drainage structures, signs, guard rails, protective structures and all other structures and appurtenances necessary or convenient for vehicular traffic. A highway in a rural area may be called a 'road,’ while a highway in a municipal area may be called a 'street’.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 121, par. 2—202 (now 605 ILCS 5/2—202 (West 1992)).

Reading together section 11—1007 of the Illinois Vehicle Code and section 2—202 of the Illinois Highway Code, there is no doubt that the legislature at least foresaw that pedestrians would use roads, bridges, and shoulders for travel. But foreseeability alone does not equal duty. Other factors must also be considered. The factors to consider when determining whether a duty of care is owed are: "(1) foreseeability that the defendant’s conduct will result in injury to another; (2) likelihood of injury; (3) the magnitude of guarding against it; and (4) the consequences of placing that burden upon the defendant.” Curatola, 154 Ill. 2d at 214, 608 N.E.2d at 888.

Pedestrians have been found to be intended and permitted users of a street or road under some circumstances: while in a designated bus loading zone (Jorgensen v. Whiteside (1992), 233 Ill. App. 3d 783, 599 N.E.2d 1009), while using the street to load, unload, enter, or exit a legally parked vehicle (Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, 525 N.E.2d 242), while using a crosswalk (Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 527 N.E.2d 572), or while unloading a legally parked truck (Curatola v. Village of Niles (1993), 154 Ill. 2d 201, 608 N.E.2d 882). Glaring by its absence from the briefs of the parties and the authorities cited in Wojdyla and Curatela is any case fitting the facts of this case. We are not concerned with a city street, an urban setting, or a controlled-access superhighway. We are dealing with what the defendant characterizes as a "rural country road.”

It is common knowledge that country roads have no crosswalks, no parking lanes, and no designated pedestrian walkways or sidewalks. We are not discussing Michigan Avenue in Chicago. We are discussing the Williamson County/Franklin County line road.

As a practical matter it is impossible to cross a country road at a street corner or crosswalk. By its very nature, a country road is devoid of street corners and crosswalks. The closest thing to a street corner is an intersection with another country road, and this may be miles away. It would be ludicrous to expect a person to travel miles to an intersection to cross the road. Even if that were attempted, the pedestrian would have to walk on the road or shoulder to get there, because of the lack of sidewalks.

While it is the intent of the municipality which controls intended and permitted status, not the intent of the user (Wojdyla, 148 Ill. 2d at 425-26, 592 N.E.2d at 1102), we believe that a key factor in determining the intended use must be a recognition of the traditional and customary use.

It is not uncommon for a mailbox to be on the opposite side of the road from the residence it serves, and the homeowner must cross the road to collect his mail. On country roads people ride horses and bicycles; they jog, take walks to the neighbors, and drive combines and tractors; and yes, they drive cars too. This should come as no surprise.

Even in the age of the paved road and the automobile, pedestrians have always been intended and permitted users of country roads. Our supreme court has specifically recognized this inescapable fact. "As a matter of common knowledge, pedestrians upon highways running through the country use, and have a right to use, such highways, as well as the autoist, and both hold a mutual obligation, each to the other to observe their reciprocal rights.” (Emphasis added.) (Blumb v. Getz (1937), 366 Ill. 273, 277, 8 N.E.2d 620, 622.) If this right recognized in Blumb has been abrogated, we have been unable to find the statute which did so.

In Wojdyla the court stated, "To determine the intended use of the property involved here, we need look no further than the property itself.” (Wojdyla, 148 Ill. 2d at 426, 592 N.E.2d at 1102.) Looking at the property, we see a rural country road traditionally used by automobiles, farm equipment, and pedestrians.

Accordingly, we hold that pedestrians are intended and permitted users of country roads. This holding does not require a perfect surface for the pedestrian to use. The municipality is only required to exercise ordinary care to make the road (see Ill. Rev. Stat. 1991, ch. 121, par. 2—202 (now 605 ILCS 5/2—202 (West 1992))) reasonably safe for vehicular and pedestrian use. Whether this duty has been met or breached is a factual question to be resolved by considering the circumstances at and prior to the accident.

Justice Lewis states in his dissent, "There are no citations of authority by the plaintiff or the majority that indicate that counties and cities have a duty to maintain areas along the side of the streets or roads where the counties and cities have never maintained.” (261 Ill. App. 3d at 60-61.) We respectfully point out that this assertion is the comment lacking support, not the majority opinion. Pedestrians are required to walk upon the shoulder under certain circumstances (Ill. Rev. Stat. 1991, ch. 95½, par. 11—1007 (now 625 ILCS 5/11—1007 (West 1992))), and the term "highway” includes rights-of-way and bridges (Ill. Rev. Stat. 1991, ch. 121, par. 2—202 (now 605 ILCS 5/2—202 (West 1992))). Our supreme court has specifically held that pedestrians "use” and "have a right to use” roads and highways (emphasis added) (Blumb, 366 Ill. at 277, 8 N.E.2d at 622), and this is a matter of common knowledge. These authorities compel the conclusion that pedestrians are intended and permitted users of country roads including bridges and the shoulder of the road.

It is important to clarify our holding in this case. The circuit court dismissed this case on the premise that no duty of care is owed to pedestrians using rural country roads. We hold today that a duty of ordinary care is owed. We are not holding that a duty exists to cut weeds on the shoulder of a country road or in a creek bed crossed by such a road. That is not to say that such a duty either exists or does not exist. Nor are we holding that it is or is not a breach of the duty of ordinary care to fail to cut weeds in or around a bridge or on the shoulder of a road. For us to make such a ruling would constitute a decision on an issue that is a mixed question of law and fact that was not squarely presented to us. Paragraph 8(a) of the fourth amended complaint claims the county was negligent in failing to "remove weeds which had grown in and around the concrete bridge structure.” How tall were the weeds? What is meant by the allegation they had grown in and around? The resolution of these questions would aid greatly in determining whether the duty of ordinary care, which we have found is owed to pedestrians, includes the duty to cut the weeds.

We recognize that a section 2—615 motion is not the proper method for answering these questions. However, it is not our place to recommend the type of motion to file. We leave that to the parties.

Accordingly, the judgment entered by the circuit court is reversed, and the cause is remanded.

Reversed and remanded.