Knight v. City of Chicago
Annotate this Case
THIRD DIVISION
June 17, 1998
No. 1-96-0329
JOHN KNIGHT and ALICIA WASHINGTON,
Plaintiffs-Appellees,
v.
THE CITY OF CHICAGO,
Defendant-Appellant.
)
)
)
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
90 L 02454 and
90 L. 14226,
Consolidated
Honorable
Alfred J. Paul,
Judge Presiding.
JUSTICE CAHILL delivered the opinion of the court:
The facts are these: a Chicago fire truck, on the way to a
fire, drove onto a raised median strip. The median was under
repair and contained empty planter boxes and tree pits. The
driver lost control when the wheels of the truck entered the
planter boxes and a tree pit. The truck then entered the
opposite lane of traffic and hit a car occupied by two young
women. The driver of the car, Dovie Knight, was killed and the
passenger, Alicia Washington, was injured. Dovie Knight's father
and Alicia Washington each sued the City of Chicago (the City).
The actions were consolidated. After trial, the jury returned a
verdict in favor of John Knight for $1,500,000 and in favor of
Alicia Washington for $200,000. The City appeals. We reverse.
At approximately midnight on September 11, 1989, a Chicago
firefighter, Patrick Lynch, was driving a Chicago fire department
snorkel truck southbound on Halsted Street. The truck,
responding to a call, was traveling approximately 35 miles per
hour with siren and warning lights activated. At the same time,
Dovie Knight was driving her car north on Halsted.
The fire truck went southbound through the intersection of
111th and Halsted, where the light was green, still traveling 35
miles per hour. The parking lane of southbound Halsted was
filled with parked cars. Two cars were double-parked in the
right-hand southbound travel lane, so only the left-hand
southbound lane was clear for traffic.
As the fire truck approached the double-parked cars, the
truck swerved to the left, and the wheels on the left side of the
truck mounted the median curb. Witnesses disputed whether the
driver of the fire truck had been forced to take evasive action
because a car had come out of the adjacent alley and blocked the
left and only open lane of traffic.
Once on the median, the wheels of the fire truck rolled in
and out of the planter boxes and into the tree pit. The truck
was then propelled off the median into the oncoming northbound
lanes where Dovie Knight's car was facing northbound. The truck
struck the driver's side door of Dovie Knight's car.
The jury found the City negligent and awarded damages to the
plaintiffs. The City filed a posttrial motion for judgment
notwithstanding the verdict or, in the alternative, a new trial.
The court denied the motion, finding that it was foreseeable that
a fire truck, an emergency vehicle, would drive on a raised
median, and that the City has a duty of reasonable care when it
installs and maintains planter boxes on medians.
If defendant owes no duty to the plaintiffs, and the
evidence establishes that there is no duty, the verdict cannot
stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494,
510, 229 N.E.2d 504 (1967). We review the denial of a judgment
n.o.v. under the Pedrick standard: whether all the evidence, when
viewed most favorably to the opponent, so overwhelmingly favors
the movant that no contrary verdict could ever stand. Pedrick,
37 Ill. 2d at 510. A judgment notwithstanding the verdict
presents a question of law and will be granted only if there is a
total failure to prove an essential element of the plaintiff's
case. Baier v. Bostitch, 243 Ill. App. 3d 195, 202, 611 N.E.2d 1103 (1993). The threshold issue in this case is whether the
City owes a duty to maintain a raised median in such a way as to
make it safe for use by emergency vehicles.
We initially note that plaintiffs, throughout their brief,
argue that the City not only had a duty to make the median safe,
but also to warn of a raised median under repair. As the City's
brief points out, the alleged failure to warn was addressed
through a motion in limine. The issue was excluded from trial
with no objection from the plaintiffs. The jury instruction
tendered by the plaintiffs and given to the jury did not raise
the issue. The issue is waived. Green v. Union Pacific R.R.
Co., 269 Ill. App. 3d 1075, 1087, 647 N.E.2d 1092 (1995). We
note, however, that the City owes no duty to warn of obvious
dangers and that drivers are presumed to know that leaving the
road is dangerous. Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 665 N.E.2d 826 (1996). The City also has absolute
immunity from liability based on alleged failures to erect
traffic warnings or barricades. See 745 ILCS 10/3-104 (West
1994).
A negligence claim must allege the existence of a duty,
breach of that duty, and an injury proximately caused by the
breach. Ross v. City of Chicago, 168 Ill. App. 3d 83, 86, 522 N.E.2d 215 (1988). The City is subject to the Local Governmental
and Governmental Employees Tort Immunity Act (the Act) (745 ILCS
10/3-102 (West 1994)). Section 3-102(a) of the Act imposes a
duty to exercise ordinary care to maintain property in a
reasonably safe condition. The City may be liable if, after it
constructs or improves public property, it appears from its use
that the City has created a condition that is not reasonably
safe. 745 ILCS 10/3-102(a) (West 1994). The Act codifies the
common law duties of municipalities to maintain public ways.
Ross, 168 Ill. App. 3d at 87. At common law, liability arises
when the undertaken improvement creates an unreasonably dangerous
condition. Ross, 168 Ill. App. 3d at 87.
The City argues that the scope of its duty to maintain
property in a reasonably safe condition cannot be read to include
maintenance of raised medians in such a way that they are safe
for vehicles, including emergency vehicles, when they leave the
roadway.
Plaintiffs note, however, that our supreme court has held
that, "when a city creates a hazardous condition and someone is
injured as a consequence it must respond in damages." Baran v.
City of Chicago Heights, 43 Ill. 2d 177, 181, 251 N.E.2d 227
(1969). Plaintiffs argue that the planter boxes and tree pits
created a hazardous condition. In support they rely on Michalak
v. County of La Salle, 121 Ill. App. 3d 574, 459 N.E.2d 1131
(1984), and Kubala v. Dudlow, 17 Ill. App. 2d 463, 150 N.E.2d 643
(1958).
In Michalak, the plaintiff left the road, entered the
shoulder and slid into a guardrail. The guardrail pierced the
car and injured the plaintiff. The court, relying on the
Illinois Supreme Court opinion in Cunis v. Brennan, 56 Ill. 2d 372, 308 N.E.2d 617 (1974), held that a duty is owed if an
occurrence is reasonably foreseeable. An occurrence is
"reasonably foreseeable" if a reasonably prudent person could
have foreseen as likely the events that transpired. If the
events are "'highly extraordinary,'" "'bizarre'" or "'unique,'"
the occurrence is not reasonably foreseeable. Michalak, 121 Ill.
App. 3d at 576, quoting Cunis, 56 Ill. 2d at 380-81. The court
found that the construction of a guardrail at the site conceded
foreseeability: that someone might deviate from the roadway.
Michalak, 121 Ill. App. 3d at 576.
Even though Michalak and Cunis stress whether the accidents
were reasonably foreseeable, the Cunis court noted that "the
existence of a legal duty is not to be bottomed on the factor of
foreseeability alone." Cunis, 56 Ill. 2d at 375. "Instead, we
must balance the foreseeability of the harm against the burdens
and consequences that would result from the recognition of a
duty." Hutchings v. Bauer, 149 Ill. 2d 568, 571, 599 N.E.2d 934
(1992), citing Cunis, 56 Ill. 2d at 375, and Lamkin v. Towner,
138 Ill. 2d 510, 522-23, 563 N.E.2d 449 (1990). See also
Bucheleres, 171 Ill. 2d at 456 (to determine whether the common
law imposes a duty, Illinois courts examine four factors: the
likelihood of injury, the reasonable foreseeability of such
injury, the magnitude of the burden of guarding against the
injury, and the consequences of placing that burden on the
defendant).
In Kubala the court reviewed whether the plaintiff stated a
cause of action upon which relief could be granted. Kubala, 17
Ill. App. 2d at 467. The plaintiff alleged that the defendant
had placed a row of concrete posts on his land near a curved
roadway. Kubala, 17 Ill. App. 2d at 468. The victim was a
passenger in a car that left the roadway at the curve and struck
the concrete posts. Kubala, 17 Ill. App. 2d at 465. The court
noted that the general rule applicable to this case was found in
the Restatement (Second) of Torts, section 368:
"A possessor of land who creates or permits to
remain thereon an excavation or other artificial
condition so near an existing highway that he realizes
or should realize that it involves an unreasonable risk
to others accidentally brought into contact with such
condition while traveling with reasonable care upon the
highway, is subject to liability for physical harm
thereby caused to [them]." Restatement of Torts
(Second) 368, at 268 (1965).
The court did not address the issue of duty, but found that the
plaintiff stated a cause of action. Kubala, 17 Ill. App. 2d at
469-70. Kubala is not helpful. The case does not address the
issue of duty and involves a private land owner rather than a
municipality.
A more recent case and, we believe, one dispositive of the
case here, is DiBenedetto v. Flora Township, 153 Ill. 2d 66, 605 N.E.2d 571 (1992). In DiBenedetto the victim's car crossed an
oncoming lane of traffic, then crossed a five- to seven-foot-wide
shoulder and crashed in a drainage ditch. The plaintiff
maintained that the steepness of the ditch and its proximity to
the edge of the paved road were dangers to traffic. Our supreme
court noted that the ditch was not designed for vehicular
traffic. DiBenedetto, 153 Ill. 2d at 70. The court found that
the township did not have a duty to maintain the drainage ditch
in a safe condition for vehicular traffic. Although the accident
was foreseeable, the common law will not impose a duty on a
municipality to keep a drainage ditch safe for vehicles.
DiBenedetto, 153 Ill. 2d at 70-72. The burden of such a duty is
far too great. DiBenedetto, 153 Ill. 2d at 75 (Miller, C.J.,
concurring, joined by Freeman, J.).
Plaintiffs attempt to distinguish DiBenedetto. They argue
that applying DiBenedetto to this case expands the holding to
effectively confine the duty of the City to maintain only the
traveled roadways. Plaintiffs argue there are several reasons for
not doing so. First, plaintiffs maintain that emergency vehicles
routinely drive on or across medians to avoid traffic in case of
emergency, and they cite to the fire truck driver's testimony in
support. Plaintiffs conclude that it is foreseeable that
emergency vehicles might enter the median. If so, the City has a
duty to make the median reasonably safe and free from
obstructions for emergency vehicles. Second, plaintiffs argue
DiBenedetto can be distinguished. Here, the median adjoined the
roadway and, unlike the drainage ditch, was not separated from
the roadway by a shoulder.
We disagree. Even if we were to concede that fire trucks
"routinely" drive on raised medians, the fire truck driver, in
his testimony, also pointed out that emergency vehicles go
"potentially everywhere." The hypothetical cases are endless,
from playgrounds to pedestrian shopping malls -- wherever there
is an emergency or fire. A duty to make safe all property that
may foreseeably be used by emergency vehicles is a duty without
limit.
The court wrote in DiBenedetto, that "[w]hile this accident
was foreseeable to the extent that, in retrospect, all accidents
are foreseeable, this is not sufficient to enlarge the township's
duty." DiBenedetto, 153 Ill. 2d at 72.
A municipality need only maintain the roadways in a safe and
passable condition. That the area surrounding the roadway is
unsafe for vehicular travel is not the sort of defect for which a
municipality is liable. DiBenedetto, 153 Ill. 2d at 71. "Just
as a municipality is only required to maintain its streets and
sidewalks for their normal and intended uses, a township is only
required to maintain the traveled way, shoulders, and drainage
ditches according to their normal and intended uses.
DiBenedetto, 153 Ill. 2d at 71-72, citing Warchol v. City of
Chicago, 75 Ill. App. 3d 289, 294, 393 N.E.2d 725 (1979). An
exception to this rule for emergency vehicles would enlarge the
duty of the City in a way we believe is incompatible with the
supreme court decision in DiBenedetto.
The trial court erred in denying the motion for a judgment
notwithstanding the verdict.
Judgment reversed.
GORDON, J., concurs.
JUSTICE COUSINS, dissenting:
I dissent.
The record in the instant case establishes that emergency
city vehicles used the medians as and when necessary to get
around traffic. Therefore, the use of the median in the case at
bar by the emergency vehicle was both permissible and, based on
the record in this case, foreseeable.
Although vehicles are permitted to use the medians, the City
does contend that it has no duty to maintain or make improvements
to the medians in a manner that prevents a dangerous condition to
any vehicles that use the median. The majority, on appeal, adopts
the City's contention. However, the Illinois Supreme Court
declared more than a quarter century ago that "when a city
creates a hazardous condition and someone is injured as a
consequence it must respond in damages." Baran v. City of
Chicago Heights, 43 Ill. 2d 177, 181, 251 N.E.2d 227 (1969).
Further, section 3-102(a) of the Local Governmental and
Governmental Employees Tort Immunity Act (the Act) provides:
"[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." 745
ILCS 10/3-102(a) (West 1994).
Therefore, under the Act, the City is liable if, after it
constructs or improves public property "it appears from its use
that [the City] has created a condition that is not reasonably
safe." 745 ILCS 10/3-103(a)(West 1994). Liability arises when
the undertaken improvement itself creates an unreasonably
dangerous condition. Ross v. City of Chicago, 168 Ill. App. 3d
83, 87, 522 N.E.2d 215 (1986).
The City cites the supreme court's decision in DiBenedetto
v. Flora Township, 153 Ill. 2d 66, 605 N.E.2d 571 (1992), to
support its contention that it owed no duty under the
circumstances in this case. However, DiBenedetto is
distinguishable from the present case. In DiBenedetto, the
decedent's automobile crossed over the oncoming traffic lane,
entered a five- to seven-foot-wide shoulder area on the edge of a
paved roadway, crossed over the shoulder, landed in the drainage
ditch and immediately overturned, killing the decedent. The
plaintiff maintained that the drainage ditch alongside the road
was not safe for vehicular traffic and sought to hold the
township liable for its failure to make the drainage ditch safe
for vehicular traffic. DiBenedetto, 153 Ill. 2d at 70. The
supreme court found that the accident was not of the type that
could have been expected under normal driving circumstances, and
held that there was no duty to make the drainage ditch safe for
vehicular travel. DiBenedetto, 153 Ill. 2d at 72.
Unlike DiBenedetto, the instant case involves an emergency
vehicle. Also, the DiBenedetto roadway, shoulder and ditch are
dissimilar. Further, the record establishes that emergency
vehicles routinely drive on or across medians to get around
traffic in the city. Additionally, in the instant case, it was
foreseeable that emergency vehicles would travel onto and
traverse the median. Here, defendant had a duty either to make
the median reasonably safe and free of obstructions, or warn of
obstructions on the median that were obscured so that emergency
personnel could have warning that the median was not safe to
traverse.
Still further, unlike DiBenedetto, the record establishes
that the area where the incident occurred in this case directly
adjoins the roadway. Again, it was reasonably foreseeable that an
emergency vehicle might come into contact with an excavation or
other artificial condition built adjacent to a roadway. See
Kubala v. Dudlow, 17 Ill. App. 2d 463, 469, 150 N.E.2d 643
(1958).
In this appeal, I agree with the plaintiff's contention
that "the issue *** centers on the City's duty in making
'improvements' to medians and to warn of dangers relating to
obstacles on such medians, when it knows that they are routinely
used by emergency vehicles and it is foreseeable that they could
be used in other emergency situations." The Illinois Supreme
Court has addressed this issue and has stated:
"[W]hen a city creates a hazardous condition and someone is
injured as a consequence it must respond in damages, just as
others are required to do. *** A municipal corporation, like
an individual or a private corporation, is required to
exercise its rights and powers with such precautions as
shall not subject others to injury. The rule which protects
it in the exercise of its governmental functions should not
be construed to relieve [it] from liability when the plan
devised, if put in operation, leaves the city's streets in a
dangerous condition for public use." Baran v. Chicago
Heights, 43 Ill. 2d at 181, citing City of Chicago v. Seben,
165 Ill. 371, 46 N.E. 244 (1897).
The decision of the trial court should be affirmed.
June 17, 1998
No. 1-96-0329
JOHN KNIGHT and ALICIA WASHINGTON,
Plaintiffs-Appellees,
v.
THE CITY OF CHICAGO,
Defendant-Appellant.
)
)
)
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
90 L 02454 and
90 L. 14226,
Consolidated
Honorable
Alfred J. Paul,
Judge Presiding.
JUSTICE CAHILL delivered the opinion of the court:
The facts are these: a Chicago fire truck, on the way to a
fire, drove onto a raised median strip. The median was under
repair and contained empty planter boxes and tree pits. The
driver lost control when the wheels of the truck entered the
planter boxes and a tree pit. The truck then entered the
opposite lane of traffic and hit a car occupied by two young
women. The driver of the car, Dovie Knight, was killed and the
passenger, Alicia Washington, was injured. Dovie Knight's father
and Alicia Washington each sued the City of Chicago (the City).
The actions were consolidated. After trial, the jury returned a
verdict in favor of John Knight for $1,500,000 and in favor of
Alicia Washington for $200,000. The City appeals. We reverse.
At approximately midnight on September 11, 1989, a Chicago
firefighter, Patrick Lynch, was driving a Chicago fire department
snorkel truck southbound on Halsted Street. The truck,
responding to a call, was traveling approximately 35 miles per
hour with siren and warning lights activated. At the same time,
Dovie Knight was driving her car north on Halsted.
The fire truck went southbound through the intersection of
111th and Halsted, where the light was green, still traveling 35
miles per hour. The parking lane of southbound Halsted was
filled with parked cars. Two cars were double-parked in the
right-hand southbound travel lane, so only the left-hand
southbound lane was clear for traffic.
As the fire truck approached the double-parked cars, the
truck swerved to the left, and the wheels on the left side of the
truck mounted the median curb. Witnesses disputed whether the
driver of the fire truck had been forced to take evasive action
because a car had come out of the adjacent alley and blocked the
left and only open lane of traffic.
Once on the median, the wheels of the fire truck rolled in
and out of the planter boxes and into the tree pit. The truck
was then propelled off the median into the oncoming northbound
lanes where Dovie Knight's car was facing northbound. The truck
struck the driver's side door of Dovie Knight's car.
The jury found the City negligent and awarded damages to the
plaintiffs. The City filed a posttrial motion for judgment
notwithstanding the verdict or, in the alternative, a new trial.
The court denied the motion, finding that it was foreseeable that
a fire truck, an emergency vehicle, would drive on a raised
median, and that the City has a duty of reasonable care when it
installs and maintains planter boxes on medians.
If defendant owes no duty to the plaintiffs, and the
evidence establishes that there is no duty, the verdict cannot
stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494,
510, 229 N.E.2d 504 (1967). We review the denial of a judgment
n.o.v. under the Pedrick standard: whether all the evidence, when
viewed most favorably to the opponent, so overwhelmingly favors
the movant that no contrary verdict could ever stand. Pedrick,
37 Ill. 2d at 510. A judgment notwithstanding the verdict
presents a question of law and will be granted only if there is a
total failure to prove an essential element of the plaintiff's
case. Baier v. Bostitch, 243 Ill. App. 3d 195, 202, 611 N.E.2d 1103 (1993). The threshold issue in this case is whether the
City owes a duty to maintain a raised median in such a way as to
make it safe for use by emergency vehicles.
We initially note that plaintiffs, throughout their brief,
argue that the City not only had a duty to make the median safe,
but also to warn of a raised median under repair. As the City's
brief points out, the alleged failure to warn was addressed
through a motion in limine. The issue was excluded from trial
with no objection from the plaintiffs. The jury instruction
tendered by the plaintiffs and given to the jury did not raise
the issue. The issue is waived. Green v. Union Pacific R.R.
Co., 269 Ill. App. 3d 1075, 1087, 647 N.E.2d 1092 (1995). We
note, however, that the City owes no duty to warn of obvious
dangers and that drivers are presumed to know that leaving the
road is dangerous. Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 665 N.E.2d 826 (1996). The City also has absolute
immunity from liability based on alleged failures to erect
traffic warnings or barricades. See 745 ILCS 10/3-104 (West
1994).
A negligence claim must allege the existence of a duty,
breach of that duty, and an injury proximately caused by the
breach. Ross v. City of Chicago, 168 Ill. App. 3d 83, 86, 522 N.E.2d 215 (1988). The City is subject to the Local Governmental
and Governmental Employees Tort Immunity Act (the Act) (745 ILCS
10/3-102 (West 1994)). Section 3-102(a) of the Act imposes a
duty to exercise ordinary care to maintain property in a
reasonably safe condition. The City may be liable if, after it
constructs or improves public property, it appears from its use
that the City has created a condition that is not reasonably
safe. 745 ILCS 10/3-102(a) (West 1994). The Act codifies the
common law duties of municipalities to maintain public ways.
Ross, 168 Ill. App. 3d at 87. At common law, liability arises
when the undertaken improvement creates an unreasonably dangerous
condition. Ross, 168 Ill. App. 3d at 87.
The City argues that the scope of its duty to maintain
property in a reasonably safe condition cannot be read to include
maintenance of raised medians in such a way that they are safe
for vehicles, including emergency vehicles, when they leave the
roadway.
Plaintiffs note, however, that our supreme court has held
that, "when a city creates a hazardous condition and someone is
injured as a consequence it must respond in damages." Baran v.
City of Chicago Heights, 43 Ill. 2d 177, 181, 251 N.E.2d 227
(1969). Plaintiffs argue that the planter boxes and tree pits
created a hazardous condition. In support they rely on Michalak
v. County of La Salle, 121 Ill. App. 3d 574, 459 N.E.2d 1131
(1984), and Kubala v. Dudlow, 17 Ill. App. 2d 463, 150 N.E.2d 643
(1958).
In Michalak, the plaintiff left the road, entered the
shoulder and slid into a guardrail. The guardrail pierced the
car and injured the plaintiff. The court, relying on the
Illinois Supreme Court opinion in Cunis v. Brennan, 56 Ill. 2d 372, 308 N.E.2d 617 (1974), held that a duty is owed if an
occurrence is reasonably foreseeable. An occurrence is
"reasonably foreseeable" if a reasonably prudent person could
have foreseen as likely the events that transpired. If the
events are "'highly extraordinary,'" "'bizarre'" or "'unique,'"
the occurrence is not reasonably foreseeable. Michalak, 121 Ill.
App. 3d at 576, quoting Cunis, 56 Ill. 2d at 380-81. The court
found that the construction of a guardrail at the site conceded
foreseeability: that someone might deviate from the roadway.
Michalak, 121 Ill. App. 3d at 576.
Even though Michalak and Cunis stress whether the accidents
were reasonably foreseeable, the Cunis court noted that "the
existence of a legal duty is not to be bottomed on the factor of
foreseeability alone." Cunis, 56 Ill. 2d at 375. "Instead, we
must balance the foreseeability of the harm against the burdens
and consequences that would result from the recognition of a
duty." Hutchings v. Bauer, 149 Ill. 2d 568, 571, 599 N.E.2d 934
(1992), citing Cunis, 56 Ill. 2d at 375, and Lamkin v. Towner,
138 Ill. 2d 510, 522-23, 563 N.E.2d 449 (1990). See also
Bucheleres, 171 Ill. 2d at 456 (to determine whether the common
law imposes a duty, Illinois courts examine four factors: the
likelihood of injury, the reasonable foreseeability of such
injury, the magnitude of the burden of guarding against the
injury, and the consequences of placing that burden on the
defendant).
In Kubala the court reviewed whether the plaintiff stated a
cause of action upon which relief could be granted. Kubala, 17
Ill. App. 2d at 467. The plaintiff alleged that the defendant
had placed a row of concrete posts on his land near a curved
roadway. Kubala, 17 Ill. App. 2d at 468. The victim was a
passenger in a car that left the roadway at the curve and struck
the concrete posts. Kubala, 17 Ill. App. 2d at 465. The court
noted that the general rule applicable to this case was found in
the Restatement (Second) of Torts, section 368:
"A possessor of land who creates or permits to
remain thereon an excavation or other artificial
condition so near an existing highway that he realizes
or should realize that it involves an unreasonable risk
to others accidentally brought into contact with such
condition while traveling with reasonable care upon the
highway, is subject to liability for physical harm
thereby caused to [them]." Restatement of Torts
(Second) 368, at 268 (1965).
The court did not address the issue of duty, but found that the
plaintiff stated a cause of action. Kubala, 17 Ill. App. 2d at
469-70. Kubala is not helpful. The case does not address the
issue of duty and involves a private land owner rather than a
municipality.
A more recent case and, we believe, one dispositive of the
case here, is DiBenedetto v. Flora Township, 153 Ill. 2d 66, 605 N.E.2d 571 (1992). In DiBenedetto the victim's car crossed an
oncoming lane of traffic, then crossed a five- to seven-foot-wide
shoulder and crashed in a drainage ditch. The plaintiff
maintained that the steepness of the ditch and its proximity to
the edge of the paved road were dangers to traffic. Our supreme
court noted that the ditch was not designed for vehicular
traffic. DiBenedetto, 153 Ill. 2d at 70. The court found that
the township did not have a duty to maintain the drainage ditch
in a safe condition for vehicular traffic. Although the accident
was foreseeable, the common law will not impose a duty on a
municipality to keep a drainage ditch safe for vehicles.
DiBenedetto, 153 Ill. 2d at 70-72. The burden of such a duty is
far too great. DiBenedetto, 153 Ill. 2d at 75 (Miller, C.J.,
concurring, joined by Freeman, J.).
Plaintiffs attempt to distinguish DiBenedetto. They argue
that applying DiBenedetto to this case expands the holding to
effectively confine the duty of the City to maintain only the
traveled roadways. Plaintiffs argue there are several reasons for
not doing so. First, plaintiffs maintain that emergency vehicles
routinely drive on or across medians to avoid traffic in case of
emergency, and they cite to the fire truck driver's testimony in
support. Plaintiffs conclude that it is foreseeable that
emergency vehicles might enter the median. If so, the City has a
duty to make the median reasonably safe and free from
obstructions for emergency vehicles. Second, plaintiffs argue
DiBenedetto can be distinguished. Here, the median adjoined the
roadway and, unlike the drainage ditch, was not separated from
the roadway by a shoulder.
We disagree. Even if we were to concede that fire trucks
"routinely" drive on raised medians, the fire truck driver, in
his testimony, also pointed out that emergency vehicles go
"potentially everywhere." The hypothetical cases are endless,
from playgrounds to pedestrian shopping malls -- wherever there
is an emergency or fire. A duty to make safe all property that
may foreseeably be used by emergency vehicles is a duty without
limit.
The court wrote in DiBenedetto, that "[w]hile this accident
was foreseeable to the extent that, in retrospect, all accidents
are foreseeable, this is not sufficient to enlarge the township's
duty." DiBenedetto, 153 Ill. 2d at 72.
A municipality need only maintain the roadways in a safe and
passable condition. That the area surrounding the roadway is
unsafe for vehicular travel is not the sort of defect for which a
municipality is liable. DiBenedetto, 153 Ill. 2d at 71. "Just
as a municipality is only required to maintain its streets and
sidewalks for their normal and intended uses, a township is only
required to maintain the traveled way, shoulders, and drainage
ditches according to their normal and intended uses.
DiBenedetto, 153 Ill. 2d at 71-72, citing Warchol v. City of
Chicago, 75 Ill. App. 3d 289, 294, 393 N.E.2d 725 (1979). An
exception to this rule for emergency vehicles would enlarge the
duty of the City in a way we believe is incompatible with the
supreme court decision in DiBenedetto.
The trial court erred in denying the motion for a judgment
notwithstanding the verdict.
Judgment reversed.
GORDON, J., concurs.
JUSTICE COUSINS, dissenting:
I dissent.
The record in the instant case establishes that emergency
city vehicles used the medians as and when necessary to get
around traffic. Therefore, the use of the median in the case at
bar by the emergency vehicle was both permissible and, based on
the record in this case, foreseeable.
Although vehicles are permitted to use the medians, the City
does contend that it has no duty to maintain or make improvements
to the medians in a manner that prevents a dangerous condition to
any vehicles that use the median. The majority, on appeal, adopts
the City's contention. However, the Illinois Supreme Court
declared more than a quarter century ago that "when a city
creates a hazardous condition and someone is injured as a
consequence it must respond in damages." Baran v. City of
Chicago Heights, 43 Ill. 2d 177, 181, 251 N.E.2d 227 (1969).
Further, section 3-102(a) of the Local Governmental and
Governmental Employees Tort Immunity Act (the Act) provides:
"[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." 745
ILCS 10/3-102(a) (West 1994).
Therefore, under the Act, the City is liable if, after it
constructs or improves public property "it appears from its use
that [the City] has created a condition that is not reasonably
safe." 745 ILCS 10/3-103(a)(West 1994). Liability arises when
the undertaken improvement itself creates an unreasonably
dangerous condition. Ross v. City of Chicago, 168 Ill. App. 3d
83, 87, 522 N.E.2d 215 (1986).
The City cites the supreme court's decision in DiBenedetto
v. Flora Township, 153 Ill. 2d 66, 605 N.E.2d 571 (1992), to
support its contention that it owed no duty under the
circumstances in this case. However, DiBenedetto is
distinguishable from the present case. In DiBenedetto, the
decedent's automobile crossed over the oncoming traffic lane,
entered a five- to seven-foot-wide shoulder area on the edge of a
paved roadway, crossed over the shoulder, landed in the drainage
ditch and immediately overturned, killing the decedent. The
plaintiff maintained that the drainage ditch alongside the road
was not safe for vehicular traffic and sought to hold the
township liable for its failure to make the drainage ditch safe
for vehicular traffic. DiBenedetto, 153 Ill. 2d at 70. The
supreme court found that the accident was not of the type that
could have been expected under normal driving circumstances, and
held that there was no duty to make the drainage ditch safe for
vehicular travel. DiBenedetto, 153 Ill. 2d at 72.
Unlike DiBenedetto, the instant case involves an emergency
vehicle. Also, the DiBenedetto roadway, shoulder and ditch are
dissimilar. Further, the record establishes that emergency
vehicles routinely drive on or across medians to get around
traffic in the city. Additionally, in the instant case, it was
foreseeable that emergency vehicles would travel onto and
traverse the median. Here, defendant had a duty either to make
the median reasonably safe and free of obstructions, or warn of
obstructions on the median that were obscured so that emergency
personnel could have warning that the median was not safe to
traverse.
Still further, unlike DiBenedetto, the record establishes
that the area where the incident occurred in this case directly
adjoins the roadway. Again, it was reasonably foreseeable that an
emergency vehicle might come into contact with an excavation or
other artificial condition built adjacent to a roadway. See
Kubala v. Dudlow, 17 Ill. App. 2d 463, 469, 150 N.E.2d 643
(1958).
In this appeal, I agree with the plaintiff's contention
that "the issue *** centers on the City's duty in making
'improvements' to medians and to warn of dangers relating to
obstacles on such medians, when it knows that they are routinely
used by emergency vehicles and it is foreseeable that they could
be used in other emergency situations." The Illinois Supreme
Court has addressed this issue and has stated:
"[W]hen a city creates a hazardous condition and someone is
injured as a consequence it must respond in damages, just as
others are required to do. *** A municipal corporation, like
an individual or a private corporation, is required to
exercise its rights and powers with such precautions as
shall not subject others to injury. The rule which protects
it in the exercise of its governmental functions should not
be construed to relieve [it] from liability when the plan
devised, if put in operation, leaves the city's streets in a
dangerous condition for public use." Baran v. Chicago
Heights, 43 Ill. 2d at 181, citing City of Chicago v. Seben,
165 Ill. 371, 46 N.E. 244 (1897).
The decision of the trial court should be affirmed.
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