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No. 1-00-3642

JUSTICE REID delivered the opinion of the court:

The plaintiff, Robert Zakoff (Zakoff), who is serving asspecial administrator of the estate of his deceased son, JosephZakoff (Joseph), appeals the trial court's order which grantedthe defendant Chicago Transit Authority's (CTA) motion forsummary judgment. For the reasons that follow, we affirm thetrial court's decision.

THE FACTS

On February 4, 1996, Joseph was involved in an accidentwhile driving his vehicle westbound on Interstate 90 (Kennedyexpressway) near Bryn Mawr Avenue in Chicago, Illinois. Hisvehicle left the roadway, hit a light pole, skidded across apatch of grass and collided with a concrete barrier, before goingthrough a chain-link fence and crashing into the side of the CTANagle substation building. Joseph died as a result of injurieshe received during the accident.

The Nagle substation is surrounded by a chain-link fence. The concrete barrier that Joseph hit abuts the chain-link fencesurrounding the substation.

On January 31, 1997, Zakoff filed a three-count complaint,wherein he alleged that the CTA was negligent because it: (1)improperly installed the concrete barrier, (2) allowed thebarrier and the surrounding area to remain in an unsafecondition, (3) failed to warn motorists of the dangerouscondition, (4) allowed and permitted the Nagle substation toremain too close to the roadway, and (5) failed to install asuitable barrier.

On March 16, 1999, Illinois State Police Trooper Roy Galazkawas deposed. During his discovery deposition, Galazka testifiedthat on February 4, 1996, he was driving westbound on the Kennedyexpressway when he observed three cars pulled over on the rightshoulder with their emergency flashers activated. As he gotcloser, Galazka saw that a light pole was down across the berm onthe right shoulder. Galazka defined the berm as the "grassy areaon the side of the roadway beyond the shoulder."

Galazka stated that he immediately pulled onto the rightshoulder and activated his emergency lights. Galazka was thefirst "official" to report to the accident scene. When he pulledover, Galazka saw the top of Joseph's car to his right. Afterexiting his vehicle, Galazka walked over to where the vehicle waslocated. Galazka said that Joseph was sitting in the driver'sseat. The back of the driver's seat had broken and he was fullyextended to the rear with his feet still in the well beneath thedashboard on the driver's side, but the roof of the vehicle hadcrumpled and formed around Joseph's head. It was Galazka'sbelief that Joseph was already deceased at this time.

Galazka recalled that it was 19 degrees below zero with awindchill of approximately 60 degrees below zero. He rememberedthe road being clear on the night of the accident. Galazka,however, did say that there was ice and snow on the berm, but hecould not recall the condition of the shoulder.

Galazka estimated that Joseph's vehicle traveledapproximately 175 feet after it left the Kennedy expressway andstruck the CTA substation building.

Edward Buczkiewicz, a senior power engineer for the CTA, wasdeposed on March 10, 2000. Buczkiewicz has been responsible forthe maintenance of the CTA's substations since 1994. During hisdeposition, Buczkiewicz spoke about the Nagle substation'sautomobile accident history.

Buczkiewicz said a vehicle first hit the Nagle substation in1993. The vehicle originated from Bryn Mawr Avenue as opposed tothe Kennedy expressway. On December 21, 1995, a vehicle left theKennedy expressway and collided with the container wall, fenceand the Nagle substation. On August 3, 1996, again a vehicleleft the Kennedy expressway and struck the southwest corner ofthe Nagle substation, and on September 15, 1996, a vehicle leftthe Kennedy expressway, striking the substation and leaving ahole.

After the accident in September 1996, Buczkiewicz wrote aletter to the Illinois Department of Transportation (IDOT) in aneffort to bring to IDOT's attention the problem of vehicleshitting the substation and raising the possibility of a guardrailbeing installed. Buczkiewicz said that IDOT responded byconcluding that additional protection was unnecessary. Buczkiewicz stated that there have subsequently been fouradditional accidents involving vehicles leaving the Kennedyexpressway and striking the substation. The accidents occurredin November 1996, February 1997, October 1997, and November 1998.

On April 7, 1998, Julia A. Fox was deposed. Fox worked forIDOT as its area traffic permit engineer for central Cook County. Fox stated that the concrete barrier was located on IDOT's right-of-way, which is a geographical area that is under IDOT'sjurisdiction. Fox stated that the CTA needed a permit fromIDOT's Bureau of Traffic in order to make any alterations to theconcrete barrier. Fox said that the CTA initially requested thatIDOT erect a guardrail. IDOT found a guardrail to beunwarranted. The CTA then requested a permit to build a barrieron IDOT's right-of-way, and at the time of the deposition, IDOThad yet to respond to the CTA's request.

On October 5, 1999, the discovery deposition of FredMaamari, a structural engineer for the CTA, was taken. In 1996,Maamari was involved with implementing a guardrail to preventvehicles from leaving the highway and striking the Naglesubstation. Maamari subsequently met with an official from IDOTconcerning the possibility of erecting a guardrail. He wasinformed by the IDOT official that another guardrail wasunnecessary because of the distance between the highway and theNagle substation.

The official informed Maamari that if the CTA still wantedto proceed and install a barrier it would need a permit fromIDOT. The CTA subsequently purchased water and sand barriers. In 1998, it placed the barriers around the Nagle substation butwithin the chain-link fence of the structure. This was donebecause the CTA was waiting to receive the proper permits fromIDOT and the City of Chicago.

On January 26, 2000, the CTA moved for summary judgment. Inits motion the CTA argued: (1) that it had no duty to theplaintiff because it did not design, build, own or maintain theconcrete barrier, (2) that it had no duty to the plaintiffbecause it did not design or construct the substation building,and it was only responsible for the maintenance of things withinthe fence line of the substation, (3) that the accident wasunforeseeable, (4) that the building's location was not theproximate cause of the accident, and (5) that the action wastime-barred as a result of the action not being brought within 10years of the construction of the substation as required by thestatute of repose.

On October 3, 2000, the CTA's motion for summary judgmentwas granted. The trial court held that the CTA owed Joseph noduty, and it also found that the accident was unforeseeable. Zakoff subsequently filed a timely notice of appeal.

ANALYSIS

Zakoff maintains the trial court erred when it held that theCTA owed Joseph no duty and granted summary judgment. Specifically, Zakoff maintains that the concrete barrier whichabuts the Nagle substation is an appurtenance to the substationand, as such, the CTA is liable for the barrier's negligentconstruction and maintenance. In the alternative, Zakoffmaintains that the CTA is negligent because of the dangerousproximity of the Nagle substation to the Kennedy expressway.

In response, the CTA contends that it held no duty to Zakoffbecause: (1) it did not construct, control, or maintain theconcrete barrier, and (2) the accident was unforeseeable becauseof the amount of distance between the substation and the Kennedyexpressway.

Our review of the circuit court's grant of summary judgmentis de novo. Natale v. Gottlieb Memorial Hospital, 314 Ill. App.3d 885, 888 (2000). Summary judgment is properly granted where"the pleadings, depositions, admissions, and affidavits on file,when taken together in the light most favorable to the nonmovant,show that there is no genuine issue of material fact and that themovant is entitled to judgment as a matter of law. 735 ILCS5/2-1005(c)(West 1998)." Fremont Casualty Insurance Co. v.Ace-Chicago Great Dane Corp., 317 Ill. App. 3d 67, 73 (2000),citing Soderlund Brothers, Inc. v. Carrier Corp., 278 Ill. App.3d 606, 613-14 (1995). "In deciding whether to grant summaryjudgment, a court shall construe the pleadings, affidavits,depositions, admissions, and exhibits strictly against the movantand liberally in favor of the opponent." Fillpot v. MidwayAirlines, Inc., 261 Ill. App. 3d 237, 241 (1994). Summaryjudgment is a "drastic means of disposing of litigation."Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113(1995). "Therefore, where reasonable persons could drawdivergent inferences from the undisputed material facts or wherethere is a dispute as to a material fact, summary judgment shouldbe denied and the issue decided by the trier of fact." Espinoza,165 Ill. 2d at 114.

In an action for negligence, a plaintiff must set outsufficient facts to establish that the defendant owed a duty tothe plaintiff, that the defendant breached that duty, and thatthe breach proximately caused injury to the plaintiff. Fris v.Personal Products Co., 255 Ill. App. 3d 916, 923 (1994).

A duty of care arises when the parties stand in such arelationship to one another that the law imposes upon thedefendant an obligation of reasonable conduct for the benefit ofthe plaintiff. Kirk v. Michael Reese Hospital & Medical Center,117 Ill. 2d 507, 525 (1987). Stated differently, "[E]very personowes to all others a duty to exercise ordinary care to guardagainst injury which naturally flows as a reasonably probable andforeseeable consequence of his act, and *** such duty does notdepend upon contract *** but extends to remote and unknownpersons." Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 86(1964).

Factors relevant in determining whether a duty exists andthe scope of that duty include the foreseeability of injury, thelikelihood of injury, the magnitude of the risk of injury, theburden of guarding against the injury, and the consequences ofplacing that burden on the defendant. Unger v. Eichleay Corp.,244 Ill. App. 3d 445, 449 (1993).

"[T]he question of whether a duty has been breached is afactual one, left to the trier of fact to resolve." Fillpot, 261Ill. App. 3d at 241. However, the "question of whether a dutyexists is a question of law, and where no duty exists, summaryjudgement is proper because there is no possible recovery forplaintiff as a matter of law." Ordman v. Dacon Management Corp.,261 Ill. App. 3d 275, 278 (1994).

The Nagle substation was built as part of the O'Hareextension project. On June 21, 1991, the City of Chicago (theCity) and the CTA entered into an "Agreement for the Operationand Maintenance of the O'Hare Rapid Transit Extension" (O'Hareextension agreement). Under the O'Hare extension agreement, theCity conveyed certain properties to the CTA. In particular,section 2.01 of the O'Hare extension agreement states:

"The City does hereby grant and convey to the[CTA], subject to the terms and conditions statedherein, such rights as shall be necessary or useful toallow the [CTA] to maintain and operate the rapidtransit facility, commonly known as the O'Hare RapidTransit Extension, and any appurtenances thereto(collectively the 'ORT'), which is more specificallyidentified as follows:

a. Substations

Nagle, Bryn Mawr, Cumberland, Gage and O'Haresubstations. Each substation shall include thebuilding and all appurtenances, the chain link fencesurrounding the building, and any paved areas andlandscaping located within the fence lines."

The O'Hare extension agreement goes on to state: "[t]hetitle to the ORT shall remain with the City of Chicago at alltimes," and "[i]n no event shall the City be deemed to haveconveyed to the [CTA] the use of any property other than thatidentified herein or any rights which exceed those necessary oruseful for the operation and maintenance of the ORT."

Zakoff asserts that the concrete barrier is an appurtenanceto the Nagle substation under the language in the O'Hareextension agreement. Zakoff contends that the geographiclimitation in section 2.01 which reads "within the fence line"only pertains to the "paved areas and landscaping" and,consequently, the CTA was obligated to maintain the substation'sappurtenances, even if they lay outside the substation's fenceline.

The CTA argues that it owed no duty to Zakoff because theconcrete barrier is not an appurtenance to the Nagle substation. We agree.

In Dimucci Home Builders, Inc. v. Metropolitan LifeInsurance Co., 312 Ill. App. 3d 779 (2000), an appurtenance isdefined as:

"a right or privilege incidental to the propertyconveyed. Webster's Third New International Dictionary107 (1986). '[U]pon conveyance of property the lawimplies a grant of all incidents rightfully belongingto that property at the time of conveyance and whichare essential to the full and perfect enjoyment of theproperty.'" Dimucci, 312 Ill. App. 3d at 781, quotingBishop v. Village of Brookfield, 99 Ill. App. 3d 483,490 (1981).

Black's Law Dictionary defines an appurtenance as:

"[t]hat which belongs to something else; anadjunct; an appendage. Something annexed to anotherthing more worthy as principal, and which passes asincident to it, as a right of way or other easement toland; an outhouse, barn, garden, or orchard, to a houseor messuage. [Citation.] An article adapted to theuse of the property to which it is connected, and whichwas intended to be a permanent accession to thefreehold. A thing is deemed to be incidental orappurtenant to land when it is by right used with theland for its benefit, as in the case of a way, orwatercourse, or of a passage of light, air, or heatfrom or across the land of another." Black's lawDictionary 103 (6th ed. 1990).

Here, the concrete barrier is not an appurtenance to theNagle substation. An appurtenance is conveyed with the principalproperty. When the City conveyed the rights in and to the Naglesubstation to the CTA, it did not convey the concrete barrier aswell. The concrete barrier was not located on property that wasconveyed to the CTA. Instead, the concrete barrier lies onproperty that is controlled by IDOT. The City did not convey theconcrete barrier because it could not. The barrier was not theCity's to convey, and, as such, the CTA held no duty to Zakoffwith respect to the concrete barrier.

Next, Zakoff also maintains that the CTA breached its commonlaw duty to maintain the Nagle substation in a reasonably safecondition. Zakoff argues that the CTA was negligent because thesubstation building is unreasonably in dangerous proximity to thehighway.

"[A] duty is owed where the occurrence involved isreasonably foreseeable." Michalak v. County of LaSalle County,121 Ill. App. 3d 574, 576 (1984), citing Cunis v. Brennan, 56Ill. 2d 372 (1974). "[A]n occurrence is reasonably foreseeableif a reasonably prudent person could have foreseen as likely theevents which did transpire. If those events are 'highlyextraordinary' or 'tragically bizarre' or 'unique' then theoccurrence is not reasonably foreseeable." Michalak, 121 Ill.App. 3d at 576. "A duty may be owed to a motorist who deviatesfrom the ordinary course of travel if such a deviation wasreasonably foreseeable." Michalak, 121 Ill. App. 3d at 576,citing Hoffman v. Vernon Township, 97 Ill. App. 3d 721 (1981). "In determining whether a deviation from the ordinary course oftravel is reasonably foreseeable, the distance of the obstructionfrom the highway, from the ordinary course of travel, isrelevant." Michalak, 121 Ill. App. 3d at 576.

Regarding the liability of owners or occupiers of land forartificial conditions created thereon that cause injury totravellers on an adjacent highway, Illinois courts havefrequently cited to section 368 of the Restatement (Second) ofTorts, which states:

"A possessor of land who creates or permits toremain thereon an excavation or other artificialcondition so near an existing highway that he realizesor should realize that it involves an unreasonable riskto others accidentally brought into contact with suchcondition while travelling with reasonable care uponthe highway, is subject to liability for physical harmthereby caused to persons who

(a) are travelling on the highway, or

(b) foreseeable deviate from it in the ordinary courseof travel." Restatement (Second) of Torts