Huggins v. Village of Bishop Hill

No. 3--97--0044
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

LINNEA HUGGINS, ) Appeal from the Circuit Court
) of the 14th Judicial Circuit,
Plaintiff-Appellee and ) Henry County, Illinois,
Cross-Appellant, )
)
v. )
)
THE VILLAGE OF BISHOP HILL, )
an Illinois Municipal )
Corporation, ) No. 97--L--30
)
Defendant-Appellant and )
Cross-Appellee, )
)
and )
)
ANN MARIE STODGEL d/b/a )
ANTIK AFFAR and MARTIN )
STODGEL, )
) Honorable
Defendants and ) Jay M. Hanson,
Cross-Appellees. ) Judge Presiding.
_________________________________________________________________

JUSTICE SLATER delivered the opinion of the court:
_________________________________________________________________

Plaintiff Linnea Huggins was injured when she fell down a
gravel-covered slope located outside of a business owned by
defendants Ann Marie and Martin Stodgel. In addition to the
Stodgels, plaintiff sued defendant Village of Bishop Hill, the
purported owner of the sloped area. The jury returned a verdict
in favor of plaintiff and against Bishop Hill in the amount of
$47,000. The jury also found that the amount of plaintiff's
comparative fault was 50%, resulting in a net award of $23,500.
The Stodgels were not found liable. On appeal, Bishop Hill
contends: (1) that it is immune from suit; (2) that plaintiff was
not a permitted or intended user of the area where she fell; (3)
that the village did not owe plaintiff a duty because the slope
was an open and obvious danger; and (4) that the plaintiff's
conduct bars her recovery. Plaintiff has cross-appealed,
contending that: (1) the jury's finding that plaintiff was 50% at
fault was a compromise and against the manifest weight of the
evidence; and (2) the trial court should have entered a judgment
notwithstanding the verdict against the Stodgels. We affirm.
Facts
The Stodgels own a shop called the Antik Affar and an
adjoining restaurant/tea room called P.L. Johnsons. In 1992, the
Village of Bishop Hill, in conjunction with the Illinois
Department of Transportation (IDOT), engaged in a road
improvement project. As part of the project, the street in front
of the Stodgels' business was widened, which created a sloped
area between the street and the sidewalk. The slope was
described by witnesses as two to three or four to five feet in
height and covered with gravel or white rock. Ann Stodgel told
James Robertson, the mayor of Bishop Hill, that she was concerned
about the slope and its effect on her customers' ability to
safely enter and exit her business. Ann wanted to build steps on
the slope, and Robertson told her she would need permission from
the village board, as he believed the slope was village property.
Roland Krause, the village clerk, also testified that he thought
that the slope and sidewalk were village property, although he
did not have a survey or other records to support his belief.
Ann Stodgel got permission from the village board and she and her
husband built steps leading from the street to the sidewalk in
front of the Antik Affar. Ann testified that they built the
steps eight feet wide, three feet wider than the entrance to
their business, so that customers would see the stairs and use
them. Ann believed that the sidewalk in front of her business
was village property, and the Stodgels did not maintain it or the
sloped area.
On May 11, 1993, 81-year old plaintiff Linnea Huggins went
to Bishop Hill with her sister and daughter. They stopped at the
Antik Affar, and plaintiff stayed to look at some quilts after
her sister and daughter had left. When plaintiff left the store,
her sister was sitting outside and her daughter, who had been at
another store, was in the street approaching the gravel slope
near the steps. Although plaintiff was aware of the steps, she
stepped off the sidewalk onto the gravel slope and slipped and
fell, fracturing her ankle. Plaintiff's testimony as to whether
she intentionally stepped onto the slope or slipped from the
sidewalk onto the slope was equivocal.
Plaintiff's complaint alleged that the defendants were
negligent in: (1) constructing or maintaining the sloped area by
covering it with loose gravel while knowing that pedestrians
would walk on it; (2) constructing or maintaining the sidewalk
without a railing to prevent pedestrians from stepping from the
sidewalk to the slope; and (3) failing to warn of the danger of
stepping from the sidewalk to the slope. As indicated above, the
jury found that the village was liable but that the Stodgels were
not. The jury also found that plaintiff was 50% at fault.
Analysis
Defendant Village of Bishop Hill first contends that it is
immune under section 3-103(a) of the Local Governmental and
Governmental Employees Tort Immunity Act (the Act) (745 ILCS
10/3-103(a) (West 1992)). That section provides:
"A local public entity is not liable
under this Article for an injury caused by
the adoption of a plan or design of a
construction of, or an improvement to public
property where the plan or design has been
approved in advance of the construction or
improvement by the legislative body of such
entity or by some other body or employee
exercising discretionary authority to give
such approval or where such plan or design is
prepared in conformity with standards
previously so approved. The local public
entity is liable, however, if after the
execution of such plan or design it appears
from its use that it has created a condition
that it is not reasonably safe." (Emphasis
added.) 745 ILCS 10/3-103(a) (West 1992).
The village argues that the gist of plaintiff's claim is
that the improvements to the street created the slope, and
therefore it is immune under section 3-103(a). Defendant
ignores, however, the statutory language emphasized above. It is
well settled that although a municipality is not liable for
failing to improve public property, once it does make
improvements it is liable if the improvement creates an
unreasonably dangerous condition. See Herman v. Will Township,
284 Ill. App. 3d 53, 671 N.E.2d 1141 (1996); Santelli v. City of
Chicago, 222 Ill. App. 3d 862, 584 N.E.2d 456 (1991). The jury's
finding in favor of plaintiff indicates that it found that the
slope was not reasonably safe and we cannot say, as a matter of
law, that this finding was erroneous. Therefore, the Village of
Bishop Hill is not immune under section 3-103(a) of the Act.
The village next contends that it is not liable because it
did not have notice of the allegedly dangerous condition of the
slope. We disagree. Section 3-102 of the Act provides in part:
"[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."
(Emphasis added.) 745 ILCS 10/3-102(a) (West
1992).
In this case, James Robertson, the mayor of Bishop Hill,
testified that Ann Stodgel told him she was concerned about the
slope and its effect on the ability of her customers to safely
enter and exit her business. Ann then went before the village
board and sought and obtained permission to build steps on the
slope. Under the circumstances, we believe that the village had
ample notice that the slope constituted a potential danger to
persons such as plaintiff.
The village also maintains that plaintiff cannot prevail
because she was not an "intended and permitted" user of the
slope. Defendant analogizes plaintiff's use of the slope to that
of a pedestrian crossing in the middle of the street. We
disagree.
The general rule regarding the duty of a municipality to
maintain its streets in a reasonably safe condition is that,
because pedestrians are not intended users of streets, a
municipality does not owe a duty of care to pedestrians who
attempt to cross a street outside the crosswalks. Vaughn v. City
of West Frankfort, 166 Ill. 2d 155, 651 N.E.2d 1115 (1995).
However, in Marshall v. City of Centralia, 143 Ill. 2d 1, 570 N.E.2d 315 (1991), the plaintiff was injured when he stepped into
an open sewer on a parkway owned by the defendant. The parkway
was described as a grass-covered area between the sidewalk and
the street. The supreme court concluded that the plaintiff was
an intended and permitted user of the parkway and therefore the
defendant had a duty to maintain the parkway in a reasonably safe
condition. Marshall, 143 Ill. 2d 1, 570 N.E.2d 315. We believe
that the gravel-covered slope at issue in this case is akin to
the grass-covered parkway in Marshall, and therefore plaintiff
was an intended and permitted user of the slope.
The village further contends that the gravel-covered slope
presented an open and obvious danger and therefore defendant did
not owe plaintiff a duty of care. We disagree.
Persons who own, occupy, or control and maintain land are
not ordinarily required to foresee and protect against injuries
from potentially dangerous conditions that are open and obvious.
Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 665 N.E.2d 826 (1996). The law generally assumes that persons who encounter
such common conditions as fire, height, and bodies of water will
take care to avoid any danger inherent in such conditions; the
open and obvious nature of the condition itself confers warning
and therefore the risk of harm is considered slight. Bucheleres,
171 Ill. 2d 435, 665 N.E.2d 826. However, the existence of a
known or obvious danger is not an automatic or per se bar to the
finding of a legal duty on the part of the landowner.
Bucheleres, 171 Ill. 2d 435, 665 N.E.2d 826. "Rather, the
existence of a duty in the face of a known or obvious condition
is subject to the same analysis of duty as is necessary in every
other claim of negligence." Ralls v. Village of Glendale
Heights, 233 Ill. App. 3d 147, 155, 598 N.E.2d 337, 344 (1992).
The relevant factors in determining the existence of a duty
include the foreseeability of injury, the likelihood of injury,
the magnitude of the burden of guarding against the injury and
the consequences of placing that burden on the defendant; the
fact that a dangerous condition is known or obvious affects the
foreseeability and likelihood of injury. See Bucheleres, 171 Ill. 2d 435, 665 N.E.2d 826; Deibert v. Bauer Brothers
Construction Co., 141 Ill. 2d 430, 566 N.E.2d 239 (1990).
We first consider whether the danger presented by the
gravel-covered slope was known or obvious. "Known" includes not
only knowledge of the existence of the condition, but also
appreciation of the danger it involves. "Obvious" means that
both the condition and the risk are apparent to and would be
recognized by a reasonable person in the position of plaintiff,
exercising ordinary perception, intelligence and judgment.
Deibert, 141 Ill. 2d 430, 566 N.E.2d 239.
We believe that while the risk presented by the slope was
obvious, the degree of danger was not as apparent. Based on the
photographs in the record, it appears that the rock or gravel
obscured, to a certain extent, the true angle of the slope.
"[I]f a danger is concealed or latent, rather than open and
obvious, the likelihood of injury increases because people will
not be as readily aware of such latent danger." Bucheleres, 171 Ill. 2d at 456, 665 N.E.2d at 836. Even a "seemingly innocuous
incline" can become unreasonably dangerous when combined with
other conditions impairing traction. Ralls, 233 Ill. App. 3d at
156, 598 N.E.2d at 345. In this case we find that the actual
danger presented by the slope was greater than the apparent
danger and to that extent it was foreseeable that a person in
plaintiff's position would be injured. Similarly, the likelihood
of injury also weighs in favor of imposing a duty on defendant
due to the deceptive nature of the risk involved. On the other
hand, the magnitude of the burden of guarding against the injury
and the consequences of placing that burden on defendant are not
severe. We hold that the obviousness of the danger presented by
the slope did not relieve the Village of Bishop Hill of its duty
of care.
Nonpublishable material under Supreme Court Rule 23 omitted.
For the reasons stated above, the judgment of the circuit
court is affirmed.
Affirmed.
BRESLIN and HOMER, J.J., concur.