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SIXTH DIVISION

September 14, 2001

No. 1-99-2866

JUSTICE BUCKLEY delivered the opinion of the court:

In September 1994, plaintiff Penelope Elfayer, as administrator of her deceased husband's estate, filed a wrongful death andsurvival action against defendant City of Chicago (the City)alleging both negligent and willful and wanton conduct inmaintaining a traffic median barrier. Defendant motioned forsummary judgment, which the trial court denied in January 1996. However, as pleading and discovery progressed, defendant againmotioned for summary judgment. In April 1999, the trial courtgranted defendant's motion, thereby disposing of the cause. Onappeal, plaintiff contends that the trial court erred in finding onthis second motion that there was no genuine issue of material factas to proximate cause and in holding that plaintiff's expert wasnot permitted to rely upon measurements of the median taken bypolice officers. Plaintiff asks that we reverse the grant ofsummary judgment and remand the cause for further proceedings. Weaffirm.

This cause involves a September 16, 1990, car accident thatoccurred on the elevated overpass at 3800 South Damen Avenue. Around 9 p.m., Sergeant Joseph Elfayer of the Chicago policedepartment was driving home from work, proceeding southbound on theoverpass. At the same time, Salvador Alvarez was driving north-bound with a blood-alcohol level of .206 and cocaine in his system. Alvarez blacked out, lost control of his vehicle and hit theoverpass' median, crossing over that barrier and colliding withElfayer's vehicle. Elfayer died as a result of his injuries. Alvarez pled guilty to driving while intoxicated and recklesshomicide.

Plaintiff filed an action against defendant for failure toproperly maintain the median barrier, claiming that Elfayer's deathwas proximately caused by an alleged reduction in the median'sheight. In his affidavit and deposition, civil traffic engineerAndrew Ramisch concluded that the median at the site of theaccident had not been properly maintained for protection fromcrossover accidents such as this one. Finding the median to besubstandard and defective, Ramisch testified that due to roadwayresurfacing, the median, which was to be eight inches in heightaccording to original design specifications, had been reduced tosix inches. This was a "substantial contributing factor incausation" of the accident, for Ramisch believed that an eight-inchmedian would have had a "better probability" of preventing Alvarezfrom crossing over "just because it was higher." However, Ramischadmitted that there is no set standard or regulation governing theheight of median barriers. Moreover, though Ramisch claimed heinvestigated the site personally, he never measured the median. Instead, he admitted that he based his six-inch calculation on apostaccident police report and photographs.

Plaintiff also presented the deposition of Louis Chrzasc,senior project director for the bureau of bridges and transit ofthe City of Chicago, who testified that design specifications fromthe late 1950s called for the overpass median to be eight incheshigh. Chrzasc explained that over the years, the roadway had beenresurfaced; however, he believed that the method defendant used wasnot that of layering asphalt but rather removing the existing layerand laying down a new one. Chrzasc further testified that themedian was subject to inspection every two years for defects inheight. From photographs of the median, he identified some suchdefects. Finally, Chrzasc stated that prior to the accident,defendant commissioned and received plans for installing additionalprotective barriers at the site due to the median's poor condition.

Glenn Hanck, a supervising engineer also from the bureau ofbridges and transit, testified in his deposition that in 1984, theconsulting engineering firm of Paul E. Mast prepared a projectdevelopment report for defendant on the condition of roadway areasneeding upgrades. This report warned of the dangers of head-oncollisions and recommended that the overpass median be restyled formore protection. Hanck testified that no changes were made to themedian.

Mark Lawrence, a professional engineer, investigated theaccident site for defendant. He took photographs of the median andcompared them to photographs taken of the same area at the time ofthe accident. In his affidavit, Lawrence determined that themedian was in substantially the same condition when he investigatedit as at the time of the accident. The results of his measurementsat the site, provided in photographs included in the record, showedthe median to be eight inches high.

After a prior motion was denied years earlier, defendant againmoved for summary judgment, arguing that from this evidence, it wasclear that Alvarez' action of driving drunk, rather than themedian's height, was the proximate cause of Elfayer's death andthat defendant is immunized under the Local Governmental andGovernmental Employees Tort Immunity Act (the Act) (745 ILCS 10/1-101 et seq. (West 1998) for any decision it made regarding roadwayresurfacing and the median. This time, the trial court granteddefendant's motion, finding that the Act applied, that plaintiffhad not provided any evidence that defendant had reduced themedian's height through repaving and that, whatever the median'sheight, this was merely a condition, not a proximate cause, of theaccident. The court further declared that "it's no issue ofmaterial fact that the intervening cause" of Alvarez' drunk driving"was independent." Accordingly, the court granted summary judgmentand disposed of the cause. Plaintiff filed the instant appeal.

The purpose of summary judgment is to determine whether anygenuine issue of material fact exists between the parties. Wrobelv. City of Chicago, 318 Ill. App. 3d 390, 393 (2000). Summaryjudgment will thus be granted if the pleadings, depositions andadmissions on file, together with any affidavits, show that thereis no such issue and that the moving party is entitled to judgmentas a matter of law. Billman v. Frenzel Construction Co., 262 Ill.App. 3d 681, 684 (1993). We review the propriety of an ordergranting summary judgment de novo. Anderson v. Alberto-Culver USA,Inc., 317 Ill. App. 3d 1104, 1110 (2000).

To recover in tort on her complaint alleging negligence andwillful and wanton conduct, plaintiff must first establish thatdefendant owed Elfayer a duty of care. See Washington v. City ofChicago, 188 Ill. 2d 235, 239 (1999) (a plaintiff cannot recover asa matter of law unless duty is owed); Bialek v. Moraine ValleyCommunity College School District 524, 267 Ill. App. 3d 857, 860(1994); Quintana v. City of Chicago, 230 Ill. App. 3d 1032, 1036(1992). Whether a duty exists is a question of law for the trialcourt to decide. DiBenedetto v. Flora Township, 153 Ill. 2d 66, 70(1992). Accordingly, a motion for summary judgment may properlyaddress the issue of duty. Quintana, 230 Ill. App. 3d at 1036.

A municipality is required to maintain its traveled waysaccording to their normal and intended uses. DiBenedetto, 153 Ill.2d at 71-72. A municipality has no duty to initially erect medianbarriers on its roadways. O'Brien v. City of Chicago, 285 Ill.App. 3d 864, 871 (1996); Hull v. City of Chicago, 236 Ill. App. 3d405, 406 (1992). It is only when the municipality has undertakento build a median barrier that it can be held liable. Ross v. Cityof Chicago, 168 Ill. App. 3d 83, 87 (1988); see O'Brien, 285 Ill.App. 3d at 871 (municipality not liable unless actually undertakesimprovement). However, even then, the municipality is not aninsurer of all accidents that occur as a result of the median. Ross, 168 Ill. App. 3d at 87. Liability attaches "only when the[median], itself, creates an unreasonably dangerous condition." Ross, 168 Ill. App. 3d at 87. In other words, the median mustdirectly render the roadway physically defective, thereby makingtravel unreasonably dangerous. See Ross, 168 Ill. App. 3d at 89;Harding v. Chicago Park District, 34 Ill. App. 3d 425, 429 (1975).

In traffic accident cases, we have consistently held that aduty will be imposed upon the municipality only when the eventswere reasonably foreseeable. Washington, 188 Ill. 2d at 239;DiBenedetto, 153 Ill. 2d at 72; Newsome v. Thompson, 202 Ill. App.3d 1074, 1080 (1990). Thus, unless the median is dangerous in andof itself, thereby creating a reasonable foreseeability of injury,no duty is owed to users of the roadway. Washington, 188 Ill. 2dat 240-41. Moreover, foreseeability "is limited by the extent ofdeviation of the motor vehicle causing the *** injury from theordinary course of travel." Newsome, 202 Ill. App. 3d at 1080. Amedian is not meant to be driven on by any vehicle. Washington,188 Ill. 2d at 241. Its purpose is simply to separate lanes oftraffic. Washington, 188 Ill. 2d at 241.

In Washington, 188 Ill. 2d at 241, we found that themunicipality owed no duty to the decedent of a car accident inwhich a fire truck traveling on a raised median entered oncomingtraffic. This was because the median was not inherently dangerous,but became so only when the fire truck's driver decided to drive onit. Moreover, it was not reasonably foreseeable that the driverwould use the median in this manner. Similarly in Ross, 168 Ill.App. 3d at 89, we held that the municipality did not owe a duty inan accident in which a car crossed over a median and struck thedecedents' car because the median had not rendered the streetphysically defective or unsafe for the normal course of intendedtravel, nor was the crossover a reasonably foreseeable occurrence. And in DiBenedetto, 153 Ill. 2d at 71, we specifically held that"the fact that outlying and unused portions of [a] road are impas-sable or dangerous does not constitute the sort of defect for whicha local governmental unit is liable."

In the instant case, defendant chose years ago to erect amedian on the overpass, potentially exposing itself to liability. However, there is no evidence in the record to show that the mediandirectly rendered the roadway physically defective or unsafe forthe normal, intended course of travel. The median itself did notcreate an unreasonably dangerous condition on the overpass or posea risk of harm to motorists.

While this accident may have been foreseeable in retrospect,that foreseeability is tempered by the great deviation from theordinary course of travel that occurred here. Alvarez, whiledriving drunk and high on cocaine, crossed over a median that in noway was intended to carry vehicular traffic. This is not the typeof accident one would expect to occur under normal drivingcircumstances. Even if it were foreseeable, the magnitude ofguarding against this injury and the consequences of placing thatburden on defendant would be too great; no municipality wouldundertake even the most minor or necessary improvements on ourroads for fear of facing liability. See Washington, 188 Ill. 2d at239 (magnitude of burden to be placed on municipality is relevantfactor to issue of duty); DiBenedetto, 153 Ill. 2d at 72; O'Brien,285 Ill. App. 3d at 874. Therefore, we conclude that defendant didnot owe Elfayer a duty of care to insure that the median, anoutlying and unused portion of the roadway, would prevent Alvarez,a drunk driver, from crossing over into oncoming traffic.

Were we to find, contrary to established law, that a duty ofcare did exist here, summary judgment was still proper becauseplaintiff did not provide any evidence that this duty was breached. See Thompson v. County of Cook, 154 Ill. 2d 374, 382 (1993) (theplaintiff must plead and prove breach); Wrobel, 318 Ill. App. 3d at397 (summary judgment proper if, from record, the plaintiff failsto prove element of case). Though whether a duty was breached isnormally a question for the trier of fact, this issue may beresolved by the trial court as a legal matter when, as here, theevidence presents no genuine issue of material fact. Wrobel, 318Ill. App. 3d at 397.

It must first be noted that plaintiff presents no law, statuteor guideline setting a mandatory standard for the height of amedian. Nor has plaintiff provided any evidence in the record tosupport her contention that the median would have prevented thisaccident if it were eight inches high. Plaintiff's experts couldonly testify as to the "better probability" of deterrence with ahigher median, not prevention. Most significantly, plaintiff hasnot even proven that the median was reduced from eight to sixinches. The only testimony regarding the alleged reduction camefrom Ramisch, who admitted he never measured the median and onlybased his six-inch calculation on a police report. As the trialcourt properly held, this calculation was inadmissible hearsay. Jones v. Beker, 260 Ill. App. 3d 481, 484 (1994) (police reportsconstitute hearsay); Baumgartner v. Ziessow, 169 Ill. App. 3d 647,655 (1988) (police reports generally inadmissible as substantiveevidence). Evidence of the median's height that was admissiblehere, namely, the photographs and measurements Lawrence took whilethe median was in substantially the same condition as at the timeof the accident, clearly showed the median to be eight inches high. Therefore, were a duty owed, plaintiff failed to establish a breachby defendant.

Beyond establishing duty and breach, plaintiff is alsorequired to prove that the median's height was a proximate cause ofElfayer's death. Thompson, 154 Ill. 2d at 382. Just like theissues of duty and breach, proximate cause may be decided onsummary judgment as a question of law where, as here, "reasonablemen could not differ as to the inferences to be drawn fromundisputed facts." Newsome, 202 Ill. App. 3d at 1081.

A proximate cause is one that produces injury " 'through anatural and continuous sequence of events unbroken by any effectiveintervening cause.' [Citation.]" Gilmore v. Stanmar, Inc., 261Ill. App. 3d 651, 658 (1994). This is distinguishable from acondition, which merely makes injury possible. Thompson, 154 Ill.2d at 383. If a defendant's conduct "does nothing more thanfurnish a condition" and that condition causes injury only becauseof the subsequent independent act of a third party, the creation ofthat condition is not a proximate cause of the injury. Thompson,154 Ill. 2d at 383. Instead, the subsequent independent act breaksthe causal connection between the original wrong and the injury andbecomes the sole proximate cause. Thompson, 154 Ill. 2d at 383.

We have consistently affirmed summary judgment granted tomunicipalities based on the negligent driving of a third personwhich broke the chain of causation. See Quintana, 230 Ill. App. 3dat 1037 (inoperative traffic lights were merely condition;proximate cause of the plaintiff's injuries was drivers' failure tocomply with statutory requirements); Newsome, 202 Ill. App. 3d at1081-82 (proximate cause of injury was driver's act of crossinginto opposite lane, not city's lack of barrier or other protectivedevice). More specifically, when the negligent driving was causedby a drunk driver, we have absolved municipalities from liability. See Thompson, 154 Ill. 2d at 383 (drunk driver was sole proximatecause of accident, as roadway merely provided a location); Billman,262 Ill. App. 3d at 687 (drunk driver was effective interveningcause breaking any causal chain between alleged defects inintersection and resulting injuries).

In the instant case, it is undisputed that Alvarez was drivingon the overpass while both heavily intoxicated and high on cocaine. He blacked out and left his lane of traffic, hitting the median andcrossing into Elfayer's lane. The median was, at most, merely acondition in this accident which made the crash possible. It didnot cause Alvarez' reckless driving, which was the sole subsequentindependent act breaking the causal connection between the allegeddefect in the median's height and Elfayer's death. Accordingly,the trial court did not err in holding that neither the median nordefendant's alleged failure to maintain its height was a proximatecause of this accident.

Discussing all possible issues in the instant case, Hull, 236Ill. App. 3d at 406, specifically addresses medians, crossoveraccidents, duty and causation. In Hull, the decedent was drivingnorthbound when someone driving southbound lost control of his car,hit the end of the median, crossed over it and struck decedent'scar. The plaintiff sued the City of Chicago, alleging negligencein failing to extend the median and making it "crashworthy." Weheld that, because the City had no duty to erect the medianinitially, it had no duty to extend it later. Hull, 236 Ill. App.3d at 406. We reiterated that the established law imposes "no duty[on the City] to construct its median barriers in a way thatinsures that no crossover accidents will occur." Hull, 236 Ill.App. 3d at 406. The plaintiff had to prove that the median createda new danger causing the accident, not merely that it failed toprevent the crossover. However, because the median had not madethe roadway more dangerous, it was clear that the sole proximatecause of the accident was the third party's bad driving. Hull, 236Ill. App. 3d at 406-07. Therefore, the City was not liable. Because the instant case mirrors Hull, it merits the same result.

Having reached the foregoing conclusions, we need not considerapplication of the Local Governmental and Governmental EmployeesTort Immunity Act (745 ILCS 10/1-101 et seq. (West 1998)), whichgoverns defendant's liability. However, assuming, arguendo, thatplaintiff had been able to establish duty, breach and proximatecause, a brief review of the Act shows that it would absolvedefendant of any liability here.

Section 3-102(a) imposes a duty upon defendant to safelymaintain its property for intended users and permitted uses. 745ILCS 10/3-102(a) (West 1998). In addition, section 2-201 providesthat, while defendant may be liable for ministerial decisions, itis not liable for injuries resulting from its determination ofpolicy or exercise of discretion. 745 ILCS 10/2-201 (West 1998).

In the instant case, Alvarez was not an intended user of themedian, nor was his use permitted by defendant. See Washington,188 Ill. 2d at 240-41 (driving on raised median not proper,acceptable or normal). Moreover, defendant's acts or omissionsregarding this median were determinations of policy and exercisesof discretion. Defendant weighed the costs, benefits and methodsof maintaining the median. Its acts were not ministerial, forthere is no legally binding set of standards that defendant wasrequired to follow in relation to the median's height. See Wrobel,318 Ill. App. 3d at 394-96 (defining "policy" as decisionsrequiring the municipality to balance competing interests and"discretionary" as the exercise of personal judgment in decidingwhether, how and in what manner an act should be performed, butdistinguishing "ministerial" as obedience to mandated legalauthority). Accordingly, defendant's judgments about how to resur-face the overpass, how high to keep the median and whether toprovide crossover protection were discretionary policy decisionsimmune to challenge under the Act.

In sum, we hold that summary judgment was proper here. Defendant did not owe Elfayer a duty of care to insure that themedian prevented Alvarez from crossing over into his lane oftraffic. Furthermore, plaintiff failed to provide evidence showingthat defendant breached a duty, if any existed, and evidenceshowing that the median's height, and not Alvarez' independent actof driving drunk, was a proximate cause of the accident. Even ifplaintiff had succeeded in pleading and proving all these elements,the Act immunizes defendant's acts and/or omissions regarding themedian. Thus, the trial court did not err in granting summaryjudgment to defendant, given the facts and circumstances of thiscase.

Accordingly, for all the aforementioned reasons, the judgmentof the circuit court of Cook County is affirmed.

Affirmed.

Campbell, P.J., and O'Brien, J., concur.