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SIXTH DIVISION
August 31, 2001

Plaintiff brought an action for personal injuries sustainedwhen he stepped into a pothole on a public roadway located in theVillage of Niles on March 2, 1983. The trial court granted summaryjudgment in favor of the defendant and plaintiff appealed. Ourcourt affirmed (Curatola v. Village of Niles, 230 Ill. App. 3d 743(1992)) but our decision was subsequently reversed by the IllinoisSupreme Court and the case remanded for trial (Curatola v. Villageof Niles, 154 Ill. 2d 201 (1993)).

On remand, the jury returned a verdict in favor of plaintiffand judgment was entered on the verdict. Defendant now appealsfrom the denial of its posttrial motion for judgment notwithstanding the verdict and from the judgment entered on the verdict andraises the following issues: (1) whether the defendant owed a dutyof care to plaintiff; and (2) whether the trial court erred inrefusing to give the jury defendant's two proffered specialinterrogatories.

Plaintiff Carl Curatola filed a negligence action against theVillage of Niles (Niles) for personal injuries sustained on March2, 1983, when he stepped from the rear of his delivery truck on tothe edge of a pothole located on Elizabeth Street, which is ownedand maintained by Niles. Prior to trial, Niles filed a motion forsummary judgment pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745ILCS 10/3-102 (West 1998)). Section 3-102(a) of the Tort ImmunityAct provides that

"[A] local public entity has the duty to exercise ordinary care to maintain its property ina reasonably safe condition for the use in theexercise of ordinary care of people whom theentity intended and permitted to use the property in a manner in which and at such timesas it was reasonably foreseeable that it wouldbe used ***." 745 ILCS 10/3-102(a) (West1998) (formerly Ill. Rev. Stat. 1987, ch. 85,par. 3-102(a)).

On March 6, 1990, the trial court granted summary judgment forNiles. In so doing, the trial court relied on the following testi-mony given by plaintiff at his deposition. Plaintiff stated thaton the day of the incident, he was working as a semi-truck drivermaking deliveries. When he arrived at Joseph Electronics, one ofthe company's employees directed him where to position his truckfor unloading. Plaintiff parallel parked the truck along thesouthern curb of Elizabeth Street so that the rear driver's sidewas about six inches from the curb. Plaintiff then exited the cabof the truck, opened the rear door of the trailer and went inside. Plaintiff moved the cartons to the back of the trailer so that thecompany's employees could unload them. After the boxes wereunloaded, plaintiff closed the trailer door and stepped onto thestreet. As he did so, plaintiff twisted his foot on the edge of apothole which, according to plaintiff, was located about seven feetfrom the curb. The trial judge determined that this evidencesupported the view that the truck was parked illegally in front ofthe driveway and thus, plaintiff could not be considered an"intended and permitted" user of the street under the Tort ImmunityAct. See Curatola v. Village of Niles, 154 Ill. 2d 201, 204(1993).

Plaintiff filed a motion to reconsider and attached additionalevidence by way of affidavit that his truck did not block orinterfere with the use of the driveway and that its parking did notviolate municipal ordinances. Niles filed no counteraffidavits. See Curatola v. Village of Niles, 230 Ill. App. 3d 743, 745 (1992). Plaintiff's motion to reconsider was denied and plaintiff appealed.

On appeal, our court affirmed. See Curatola v. Village ofNiles, 230 Ill. App. 3d 743, 745 (1992). We chose to follow ourdecision in Vlahos v. City of Chicago, 198 Ill. App. 3d 911 (1990),which held that a municipality has no duty to pedestrians who usethe street outside of the crosswalks, rather than the ThirdDistrict's decision in Di Domenico v. Village of Romeoville, 171Ill. App. 3d 293 (1988), which held that a municipality has a dutyto pedestrians who use the street in the immediate zone of travelaround their lawfully parked vehicles. See Curatola, 230 Ill. App.3d at 745-46.

Plaintiff appealed our decision to the Illinois Supreme Court. See Curatola v. Village of Niles, 154 Ill. 2d 201 (1993). Thesupreme court framed the issue as "whether the trial court properlygranted summary judgment determining that [Niles] owed plaintiff noduty to maintain the street area immediately around his parkedvehicle." Curatola, 154 Ill. 2d at 205. The court began its discussion with the following observation:

"[Plaintiff] asserts that the evidence hepresented in support of his motion to reconsider established that his vehicle was legallyparked at the time of his fall. [Niles] concedes that no evidence was presentedcontravening this fact. [Citation.] Consequently, weconsider [plaintiff's] vehicle as beinglegally parked when he fell." Curatola, 154Ill. 2d at 205-06.

The court began its analysis with an examination of the casesthat have developed and employed the general principle that "amunicipality owes no duty of care to a pedestrian who walks in orcrosses a public roadway outside a crosswalk." Curatola, 154 Ill.2d at 208-10. The court then carved out an exception to thatprinciple and held:

"In the present case, [plaintiff's]tractor-trailer was lawfully parked and thushe was a permitted user of the street. At thetime he was injured, he was using the streetto exit the rear of his trailer following itsunloading by other persons. *** Under thesecircumstances, [plaintiff's] use of theimmediately surrounding street to exit hisvehicle was permitted and intended. [Plain-tiff's] use of this area of the street wasmandated by virtue of the fact that he hadparked his vehicle and had to exit or reenterit. [Citations.]

***

There being no dispute that [plaintiff]was using the street in a foreseeable manner[citations], we conclude that Niles had a dutyto maintain the street immediately around[plaintiff's] legally parked vehicle. Thetrial court's determination that no duty ofcare existed was in error and entry of summaryjudgment was improper." Curatola, 154 Ill. 2dat 215-16.

The court reversed and remanded the case to the circuit court fortrial.

On remand, the trial court permitted testimony regarding thepresence/absence of "No Parking" signs on Elizabeth Street. Thefollowing testimony on this issue was presented. Thomas Paus, anemployee of the Village of Niles, testified that in March 1983, "NoParking" signs were posted in the area in question. Dominick Ross,an employee of Joseph Electronics from 1981 to 1992, testified hedoes not recall there being "No Parking" signs present in the area. Public works superintendent James Schmidt testified that "NoParking" signs have been present on both sides of Elizabeth Streetfor "as long as [he] remember[s]." Plaintiff testified that therewere no "No Parking" signs on the south side of Elizabeth Streetwhere he was parked.

At the close of plaintiff's case, defendant moved for adirected verdict. The trial court denied the motion. The juryfound in favor of plaintiff and against Niles in the amount of$77,400. The trial court thereafter denied Niles' posttrial motionfor judgment notwithstanding the verdict and Niles now appeals.

A judgment notwithstanding the verdict can only be grantedwhere all the evidence, when viewed in the light most favorable tothe opponent, so overwhelmingly favors the movant that no contraryverdict based on that evidence could stand. See Pedrick v. Peoria& Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). We apply a de novostandard to our review of decisions on motions for judgmentsnotwithstanding the verdict. See McClure v. Owens CorningFiberglas Corp., 188 Ill. 2d 102, 132 (1999).

Niles contends that the trial court erred in denying itsmotion for a directed verdict and later its motion for judgmentnotwithstanding the verdict because the evidence "indisputably"establishes that plaintiff was not legally parked and, as a result,Niles owed no duty of care to plaintiff.

A complaint for negligence must establish that the defendantowed the plaintiff a duty of care, that the defendant breached thatduty, and that the plaintiff sustained an injury proximately causedby the breach. See Marshall v. City of Centralia, 143 Ill. 2d 1,6 (1991). Whether the defendant owes a duty of care to theplaintiff is a question of law. See Marshall, 143 Ill. 2d at 6. Pursuant to the provisions of section 3-102 of the Tort ImmunityAct (745 ILCS 10/3-102 (West 1998)), Niles has a "duty to exerciseordinary care to maintain its property in a reasonably safecondition" only for those individuals by whom the entity "intendedand permitted" the said property to be used. See 745 ILCS 10/3-102(West 1998). As a general rule, a municipality owes no duty ofcare to pedestrians using public roadways outside of designatedcrosswalks or walkways. See Curatola, 154 Ill. 2d at 208. How thenarrow exception to this rule is that a municipality owes a duty ofcare to those permitted and intended individuals using the streetaround their legally parked vehicle. See Curatola, 154 Ill. 2d at213.

Niles asserts that plaintiff was illegally parked because heparked his truck in the vicinity of "No Parking" signs and facingwest in the eastbound lane of traffic.

First, with regard to the "No Parking" signs, there wasconflicting evidence as to their existence which precludes adirected finding on this basis and, in any event, which the juryimplicitly resolved in favor of plaintiff. While Mr. Paus and Mr.Schmidt testified that there were signs on Elizabeth Street,plaintiff and an employee of Joseph Electronics stated they did notrecall there being "No Parking" signs on Elizabeth Street. Wecannot say that the evidence on this issue when viewed in a lightmost favorable to plaintiff, so overwhelming favors Niles that nocontrary verdict based on the evidence could ever stand. See Maplev. Gustafson, 151 Ill. 2d 445 (1992). Moreover, the Illinois Vehicle Code (upon which the jury was instructed) defines "park" or"parking" as "the standing of a vehicle, whether occupied or not, otherwise than when temporarily and actually engaged in loading or unloading merchandise orpassengers." (Emphasis added.) 625 ILCS 5/1-156 (West 1998) (form-erly Ill. Red. Stat. 1991, ch. 95