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1-00-2677

First Division
June 4, 2001

The plaintiff, Jane Krampert, tripped and fell whilecrossing Prospect Avenue in the Village of Mount Prospect (theVillage) fracturing her elbow. She filed suit against theVillage for negligence in failing to maintain the pavement in themedian. The trial court granted summary judgment in favor of theVillage.

We affirm.

BACKGROUND

On November 20, 1998, at approximately 5 p.m., the plaintiffparked her car on the north side of Prospect Avenue near Route83. She was going to Keefer's Pharmacy, located on the otherside of the street, in order to pick up a prescription. There isa crosswalk traversing Prospect Avenue at Route 83, but there isnot a sidewalk on the north side of Prospect Avenue leading tothe crosswalk.

The median is partially planted with grass and trees andpartially paved. At the time, there was a light dusting of snowon the median. The plaintiff crossed over a part of the medianthat tapered to a point to allow for a turn lane at Route 83. Thepavement in this area is cracked and uneven. As the plaintiffwalked, she tripped and fell, fracturing her elbow. Theplaintiff pointed out at her deposition a three- or four-footstretch of the median within which she tripped.

After falling, the plaintiff went into Keefer's pharmacy andpicked up her prescription. She sat down for a brief periodbecause she felt "shaken," although she did not know that she wasinjured. An employee of the pharmacy suggested that she file anaccident report with the Village which plaintiff later did. Theemployee, Maureen Kobler, explained to the plaintiff that shealso had tripped and fallen in the street outside the pharmacyand had reported the fall to the Village.

The plaintiff left the pharmacy, again crossing the streeton her way home. Later that evening she noticed that she washaving trouble moving her arm. She went to an emergency room,where it was determined that she had fractured her elbow. Theplaintiff filed suit against the Village alleging that she wasinjured due to the negligence of the Village in maintaining theroadway.

The Village filed a motion for summary judgment arguing,among other things, that the Village, as a matter of law, couldnot be liable to the plaintiff, because: (1) the plaintiff, as apedestrian, was not an intended user of the median; and (2) theVillage did not have notice of the alleged defect. The circuitcourt granted summary judgment predicated on the Village'sarguments. This appeal followed.

ANALYSIS

The plaintiff first argues that the circuit court erred indetermining that, as a matter of law, the Village had no duty tomaintain the median for pedestrians.

Our review of a summary judgment order is de novo. Soderlund Brothers, Inc. v. Carrier Corp., 278 Ill. App. 3d 606,614, 663 N.E.2d 1, 7 (1995). Summary judgment may be grantedwhen there are no genuine issues of material fact and the movingparty is entitled to judgment as a matter of law. Telenois, Inc.v. Village of Sachaumburg, 256 Ill. App. 3d 897, 901, 628 N.E.2d581, 584 (1993). The nonmoving party need not prove his or hercase at the summary judgment stage, but the party is required topresent some factual basis that would arguably entitle him or herto a favorable judgment. Hindo v. University of HealthSciences/Chicago Medical School, 237 Ill. App. 3d 453, 459, 604N.E.2d 463, 468 (1992).

To prevail in a negligence claim, a plaintiff must show theexistence of a duty owed by the defendant to the plaintiff,breach of that duty, and injury proximately resulting from thebreach. Khalil v. City of Chicago, 283 Ill. App. 3d 161, 162,669 N.E.2d 1189, 1191 (1996). "Whether defendant owed plaintiffa duty of care is a question of law for the court." Vaughn v.City of West Frankfort, 166 Ill. 2d 155, 158, 651 N.E.2d 1115,1116 (1995).

Section 3-102(a) of the Local Governmental and GovernmentalEmployees Tort Immunity Act (the Act) provides:

"(a) Except as otherwise provided in this Article,a local public entity has the duty to exercise ordinarycare to maintain its property in a reasonably safecondition for the use in the exercise of ordinary careof people whom the entity intended and permitted to usethe property in a manner in which and at such times asit was reasonably foreseeable that it would be used***." 745 ILCS 10/3-102(a) (West 1998).

The relevant law holds the Village only owed the plaintiff a dutyif she was both a permitted and intended user of the median. Boub v. Township of Wayne, 183 Ill. 2d 520, 524, 702 N.E.2d 535,537 (1998). The Village has not denied that the plaintiff was apermitted user of the median. Therefore, the question before usis whether plaintiff was an intended user.

The general rule in Illinois is that pedestrians are notintended users of streets and therefore municipalities do not owepedestrians who cross a street outside of crosswalks a duty ofcare. Vaughn, 166 Ill. 2d at 158, 651 N.E.2d at 1117. Thiscourt specifically addressed the status of medians in Roberson v.City of Chicago, 260 Ill. App. 3d 994, 997-98, 636 N.E.2d 776,778 (1994). In that case, we held that a median strip was atraffic control device and not intended for pedestrian use.

It must be noted, however, Illinois cases have recognized alimited exception to the rule that pedestrians are not intendedusers of streets outside of crosswalks. A municipality has aduty to maintain the street in a reasonably safe condition forpedestrians in the area immediately around legally parkedvehicles. Vaughn, 166 Ill. 2d at 159, 651 N.E.2d at 1117. Here,the plaintiff argues that she was an intended user of the medianbecause she needed to cross the street mid-block in order to getto and from her legally parked car. However, the exception forparked cars only concerns the area immediately surrounding thecar. Vaughn, 166 Ill. 2d at 159, 651 N.E.2d at 1117. NumerousIllinois cases have refused to apply the exception for plaintiffsgoing to or from their cars from the other side of the street. In Tieman v. City of Princeton, 251 Ill. App. 3d 766, 623 N.E.2d769 (1993), the plaintiff tripped over a curb as she crossed thestreet mid-block to her legally parked car. The court held thatsince the plaintiff was parked on the other side of the street,the exception did not apply. See also Roberson, 260 Ill. App.3d at 997, 636 N.E.2d at 778; Wojdyla v. City of Park Ridge, 148Ill. 2d 417, 425, 592 N.E.2d 1098, 1102 (1992).

The plaintiff further argues that she must have been anintended user of the street as there was no sidewalk from herlegal parking space to the crosswalk at Route 83. Illinoiscourts have also rejected the argument that a plaintiff was anintended user because it was necessary for him or her to crossthe street outside the crosswalk. In Wojdyla, the plaintiff'sdecedent was struck by a vehicle as he crossed the street to hislegally parked car. The plaintiff argued that it was necessaryfor him to cross there because there was not a crosswalk for halfa mile in either direction. The court held that even if it wasforeseeable that pedestrians would cross the street there,pedestrians nevertheless were not intended users of the street. Wojdyla, 148 Ill. 2d at 428, 592 N.E.2d at 1103-04.

In Vaughn, the plaintiff argued that since the sidewalk onwhich she was walking ended mid-block, she was required to crossat that point to the other side of the street, where the sidewalkkept on going. Vaughn, 166 Ill. App. 3d at 161, 651 N.E.2d at1118. The court rejected this argument as well, holding firstthat the plaintiff had not established that it was impossible forher to reach her destination without crossing the street outsideof a crosswalk. Similarly, here, the plaintiff has notestablished that it was truly necessary for her to traverse thestreet mid-block rather than walking along the unpaved area onthe side of the north side of Prospect Avenue until she reachedthe crosswalk at Route 83. For the first time on appeal, theplaintiff alleges that the way along the north side of ProspectAvenue was blocked by bushes. However, this allegation was notin the complaint nor was it mentioned or referred to or shown inthe depositions, exhibits and affidavits before the trial courtwhen the court ruled on the motion for summary judgment. TheVaughn court also found the plaintiff's argument unpersuasivebecause "[w]hether a use is intended by a local government entityis not determined solely on the necessity of such use." Vaughn,166 Ill. 2d at 162, 651 N.E.2d at 1118. For instance, in Sisk v.Williamson County, 167 Ill. 2d 343, 657 N.E.2d 903 (1995), thecourt held that a pedestrian who fell off a bridge on a countryroad was not an intended user of the roadway. There was nosidewalk along the road. The court held that although it mightat times be necessary for pedestrians to walk along countryroads, "such use is not a manifestation of the localmunicipality's intent that pedestrians walk on its country roadsor an undertaking by the municipality to make country roads freefrom defects that might injure pedestrians." Sisk, 167 Ill. 2dat 352, 657 N.E.2d at 907.

Finally, the plaintiff argues that the city created anunreasonably dangerous improvement by making parking spaces fromwhich there was no reasonably safe route to the nearby buildings. This theory of liability was not set out in the complaint but wasraised in the response to the motion for summary judgment. Amunicipality is not liable for failing to make publicimprovements of roadways. Hull v. City of Chicago, 236 Ill. App.3d 405, 406, 602 N.E.2d 1300, 1301 (1992). But a municipalitymay be liable if a public improvement, once undertaken, createsan unreasonably dangerous condition. Hull, 236 Ill. App. 3d at406, 602 N.E.2d at 1301.

We do not find plaintiff's argument persuasive for severalreasons. As mentioned above, the plaintiff has not presentedevidence that there was no safe route on the north side ofProspect Avenue from the parking spaces to the crosswalk. Moreover, even if the parking space was not connected to thebuildings by a pedestrian route, the plaintiff has not allegedthat the parking space itself was defective. See Hull, 236 Ill.App. 3d at 407, 602 N.E.2d at 1301. Finally, in Wojdyla, thecourt rejected the argument that the city had a duty to makecrosswalks leading to parking spaces safe. Wojdyla, 148 Ill. 2dat 428, 592 N.E.2d at 1104.

The plaintiff was not an intended user of the median. Therefore, under the Act, the Village did not owe the plaintiff aduty to maintain the median in a safe condition for her to walkupon it. Our disposition of this issue makes it unnecessary forus to discuss the issue of notice.

For the foregoing reasons, the circuit court's grant ofsummary judgment is affirmed.

Affirmed.

McNULTY, P.J., and TULLY, J., concur.