Find Legal Information

THIRD DIVISION
June 30, 2003

No. 1-02-3135

JUSTICE WOLFSON delivered the opinion of the court:

Plaintiff Maria Leonardi stepped into a large crack in thesidewalk at the Jefferson Park bus station and injured her rightfoot. Leonardi sued the Chicago Transit Authority (CTA) and theCity of Chicago (City), alleging defendants had negligentlyfailed to maintain the sidewalks and curbs at the bus station.⁽¹⁾

The City filed a motion for summary judgment, contending ithad no duty to Leonardi because it had no management authority orcontrol over the sidewalks at the Jefferson Park bus station. The court granted the City's motion.

On appeal, the sole issue is whether the City had possessionand/or control of the bus station's curbs and sidewalks.⁽²⁾ Ifnot, the City cannot be held liable for Leonardi's injuries. Weaffirm.

BACKGROUND

Parties provided the trial court with evidence concerningthe details of Leonardi's fall and injury and the degree of theCity's control over the sidewalks and curbs at the Jefferson Parkbus station. Only the evidence pertaining to the issue of theCity's duty toward Leonardi is discussed here.

Operation and Maintenance Agreement

The City and the CTA entered into an "Agreement for theOperation and Maintenance of the Kennedy Rapid Transit Facility"(the Agreement). The parties do not dispute the Agreementapplies to the Jefferson Park bus station.

According to the Agreement, the City passed an ordinance onApril 23, 1945, granting the CTA "the exclusive right andauthority to establish, construct, reconstruct, maintain andoperate the transit system for the local transportation ofpassengers within the City." Under another ordinance, the Citycouncil authorized the extension of the then-existing transitsystem from the Logan Square Terminal to a proposed new terminal. Under the Agreement, the City undertook the construction ofthe extension and terminal. Upon completion of the extension,the City would "convey to [the CTA] for and in consideration ofone dollar ($1.00) and other good and valuable consideration suchrights as shall be necessary to allow [the CTA] to maintain andoperate said rapid transit facility and appurtenances thereto." The only portion of the transit facility over which the Cityretained any maintenance responsibilities was the landscaping.

The CTA agreed to "operate and maintain [the facility] as anintegral part of its total system" and "maintain the *** facilityand any and all appurtenances thereto in accord with the highestengineering standards." If necessary, the CTA would replace thefacility and appurtenances "in accordance with the terms andprovisions of City of Chicago ordinance of April 23, 1945,granting [the CTA] the exclusive right of operation of facilitiesfor local transportation within Chicago." (Emphasis added.) TheCTA also agreed to hold the City harmless for claims arising outof the operation and maintenance of the facility and itsappurtenances.

If the parties determined the facility was no longer neededto serve the public, the CTA could, with one year's writtennotice to the City, cease operations and remove the facility andappurtenances. At that time, all rights the CTA possessed in theproperty would be "reconveyed" to the City.

Thomas Ambry

Thomas Ambry, an assistant project director employed by theCity of Chicago, testified he oversees capital improvements ontransit facilities. He explained the City does not repairsidewalks that have fallen into disrepair at those facilities:

"Q. If a sidewalk or a curb needed to be repaired at theJefferson Park bus terminal within that area, do you knowwho would make those repairs?

***

A. Physically or -- responsibility[?]

Q. *** Let's start with responsibility.

A. CTA.

***

Q. Do you know if the city ever would participate inrepairing the sidewalk and curbs in those areas?

A. No.

***

Q. Do you know if the Chicago Department of Transportationparticipates in repairing any of the areas within the busstations or L stations that are controlled by the CTA?

A. No, we don't do them."

He also explained what he does when he receives a complaintabout the sidewalk at the terminal:

"Q. So if it comes to your attention, someone calls you andsays, 'Hey, the Jefferson Park bus terminal, a huge part --chunk of the sidewalk is missing, we want you guys to fixit,' what would your response be to that?

A. 'Call CTA.' I would -- you know, they will tell them tocall CTA.

***

Q. *** What if someone did complain about the curb or thesidewalk at Jefferson Park, who would you funnel them to?

A. To CTA."

Ambry explained the only time the City is involved inmaintenance of the sidewalks is when the City undertakes acapital improvement that involves tearing up the sidewalk. Aspart of the improvement, the City replaces the sidewalk andsometimes guarantees its work for one year. Ambry gave examplesof capital improvements: structural improvements; "gutting astation"; new floors, walls, and ceilings. When shown a photo ofthe portion of a curb in disrepair (presumably the curb at issuehere), Ambry said repair of the curb would not be a capitalimprovement project.

Kenneth Rigan

Kenneth Rigan, the general superintendent of administrationfor the Chicago Department of Transportation, Bureau of Streets,also testified the City performs no maintenance over the CTAproperty without CTA authority.

DECISION

Summary judgment is proper when "the pleadings, depositions,and admissions on file, together with the affidavits, if any,show that there is no genuine issue as to any material fact andthat the moving party is entitled to a judgment as a matter oflaw." 735 ILCS 5/2-1005(c) (West 2000). We review an ordergranting summary judgment de novo. Outboard Marine Corp. v.Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d1204 (1992).

In a negligence action, the plaintiff must providesufficient facts showing the existence of a duty owed to her bythe defendant, a breach of that duty, and an injury proximatelyresulting from the breach. Vesey v. Chicago Housing Authority,145 Ill. 2d 404, 411, 583 N.E.2d 538 (1991). Where the plaintifffails to provide facts "from which the court could infer theexistence of a duty," summary judgment for the defendant isappropriate. Vesey, 145 Ill. 2d at 411. The existence of a dutyis a question of law to be determined by the court. Vesey, 145Ill. 2d at 411.

Leonardi contends that despite the Agreement, as owner ofthe property the City retained sufficient control over theproperty to create a duty on the City's part to maintain thesidewalks. She cites section 3-102(a) of the Local Governmentaland Governmental Employees Tort Immunity Act (Tort Immunity Act),745 ILCS 10/3-102(a) (West 2000). That section states:

"(a) Except as otherwise provided in this Article, a localpublic entity has the duty to exercise ordinary care tomaintain its property in a reasonably safe condition for theuse in the exercise of ordinary care of people whom theentity intended and permitted to use the property in amanner in which and at such times as it was reasonablyforeseeable that it would be used, and shall not be liablefor injury unless it is proven that it has actual orconstructive notice of the existence of such a conditionthat is not reasonably safe in reasonably adequate timeprior to an injury to have taken measures to remedy orprotect against such condition." 745 ILCS 10/3-102(a) (West2000).

This statute does not create any new liabilities but rathercodifies the common law duty to which the immunities in theremainder of the Act apply. Vesey, 145 Ill. 2d at 414. As notedin Vesey, section 3-102 must be read in conjunction with othercommon law principles, such as the principle in landlord-tenantlaw that a landlord is not responsible for injuries cause by adefective condition existing on his premises leased to a tenantand under the tenant's control. Vesey, 145 Ill. 2d at 414. Theultimate question here is whether the City "actually exercisedcontrol over and was obligated to maintain" the sidewalks andcurves of the Jefferson Park bus station, thereby establishingthe existence of a duty to Leonardi. Bowen v. City of Harvey,164 Ill. App. 3d 637, 639, 518 N.E.2d 203 (1987).

The City contends the Agreement is a lease and, under Vesey,the City is not responsible for injuries caused by a defectivecondition on the leased property under the tenant's control. Leonardi, on the other hand, characterizes the Agreement as alicense to avoid the implications of landlord-tenant law. TheAgreement does not fit squarely within the definition of either alease or a license.

A lease provides a lessee with exclusive possession of theleased premises. Jewelers Mutual Insurance Co. v. Firstar BankIllinois, Nos. 1-00-1670 & 1-00-1766 (Ill. App. Mar. 31, 2003). To qualify as a lease contract, "there must be an agreement as tothe extent and bounds of the property, the rental price and timeand manner of payment, and the term of the lease." CeresIllinois, Inc. v. Illinois Scrap Processing, Inc., 114 Ill. 2d133, 145, 500 N.E.2d 1 (1986).

The Agreement is not a lease nor does it satisfy therequirements of a valid lease. Although the Agreement definedthe extent and bounds of the property as seen in the map attachedto the Agreement, the Agreement does not provide for rent. Also,the City does retain maintenance responsibilities over thelandscaping and may perform capital improvements at the facility.

We also reject Leonardi's attempt to categorize theagreement as a license. A license is "an authority to do someact on the land of another, without passing an estate in theland, and 'being a mere personal privilege, it can only beenjoyed by the licensee himself, and is not therefore assignableso that an under tenant can claim privileges conceded to alessee.' " In re Application of Rosewell, 69 Ill. App. 3d 996,1001, 387 N.E.2d 866 (1979). An agreement that "merely entitledone party to use property subject to the management and controlof the other party does not constitute a lease, but rather grantsonly a license." In re Rosewell, 69 Ill. App. 3d at 1001-02.

The Agreement grants a much greater interest in the propertythan a license. With the exception of the City's responsibilityto maintain the landscaping, the CTA has exclusive authority tomaintain and operate the facility. The City retained no othercontrol over the property. Moreover, the agreement uses theterms "convey," "reconvey," and "exclusive rights" in describingthe transfer of rights between the City and the CTA. These wordsestablish the CTA received more than merely a "personalprivilege."

If the Agreement is neither a lease nor a license, whateffect, if any, did the Agreement have on the City's duty tomaintain its property? Pond v. City of Chicago, 35 Ill. App. 2d378, 183 N.E.2d 179 (1962) is instructive here.

In Pond, the legislature created the Commissioners ofLincoln Park, which held the public park in trust. In 1879, thelegislature also gave the commissioners the power to acquirepublic streets leading to the park. The power and authority ofthe park commissioners over the land "has been construed asexcluding like possession and exercise by the city." Asubsequent city ordinance passed in 1893 granted thecommissioners the right to take, regulate, control, and improve aportion of Sheridan Road. The board was the predecessor of theChicago Park District.

The plaintiff was injured on a sidewalk that fell within theportion of Sheridan Road that was the subject of the 1893ordinance. She sued the City. The trial court granted summaryjudgment for the City.

On appeal, we noted the Park District was responsible formaintaining the sidewalk over which the district had jurisdictionbecause of the ordinance transferring control. Pond, 35 Ill.App. 2d at 381. The plaintiff argued the City could not evade bycontract its duty to keep its streets safe for public travel andcited a number of cases in support, including Hogan v. City ofChicago, 168 Ill. 551, 48 N.E. 210 (1897), on which Leonardirelies. We stated:

"These cases are distinguishable. There the cities involvedhad contracted with private parties for the improvement,care or repair of the cities' streets. In the instant caseone public agency pursuant to legislative enactmenttransferred to another public agency control of the streetinvolved and thereafter the transferrer ceased to have orexercise any power or control. It was not a matter ofcontract. It was a division of public duties pursuant tostatute." (Emphasis added.) Pond, 35 Ill. App. 2d at 381-82.

Here, as noted in the Agreement, the CTA is a municipalcorporation -- a creation of the legislature. The Agreementbetween the CTA and the City was made pursuant to a cityordinance granting the CTA the "exclusive right" to maintain andoperate the transit system. The authority to build JeffersonPark bus station, which would become a part of the transitsystem, also came from a city ordinance. This agreement, likethat in Pond, is a "division of public duties" between publicentities pursuant to legislative enactments.

Like the arrangement in Pond, the Agreement transferred tothe CTA total control over the facility, with the exception oflandscaping maintenance. The only other area over which the Cityretained any control was capital improvements. As Ambrytestified, sidewalk repairs do not fall under the ambit ofcapital improvements. Thus, the City had no control over thesidewalk where Leonardi fell, and, hence, no duty towardLeonardi.

Because Leonardi cannot establish the existence of a duty,her claim against the City fails. The trial court correctlygranted summary judgment in favor of the City.

CONCLUSION

For the foregoing reasons, we affirm the decision of thetrial court.

Affirmed.

SOUTH, P.J., and HOFFMAN, J., concur.

1. The CTA filed a motion to dismiss itself from the case,based on Leonardi's failure to comply with notice requirements. The trial court granted the motion and dismissed the CTA.

2. In her brief on appeal, Leonardi presents two issuespertaining to the dismissal of the CTA. She subsequently filed amotion to voluntarily dismiss the CTA from this appeal. Thatmotion was granted by this court on April 3, 2003.