{ "id": 5210683, "name": "CARL CURATOLA, Plaintiff-Appellant, v. THE VILLAGE OF NILES, Defendant-Appellee", "name_abbreviation": "Curatola v. Village of Niles", "decision_date": "1992-02-27", "docket_number": "No. 1\u201490\u20142401", "first_page": "743", "last_page": "747", "citations": [ { "type": "official", "cite": "230 Ill. App. 3d 743" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "172 Ill. App. 3d 1037", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5084481 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/172/1037-01" ] }, { "cite": "570 N.E.2d 315", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "143 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591296 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/143/0001-01" ] }, { "cite": "202 Ill. App. 3d 525", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2586527 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/202/0525-01" ] }, { "cite": "218 Ill. App. 3d 89", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498299 ], "weight": 2, "pin_cites": [ { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0089-01" ] }, { "cite": "199 Ill. App. 3d 652", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2542584 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/209/0290-01" ] }, { "cite": "198 Ill. App. 3d 911", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2474538 ], "weight": 3, "pin_cites": [ { "page": "914" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0911-01" ] }, { "cite": "209 Ill. App. 3d 311", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2540629 ], "year": 1990, "pin_cites": [ { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/209/0311-01" ] }, { "cite": "150 Ill. App. 3d 827", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3503472 ], "weight": 4, "pin_cites": [ { "page": "830" }, { "page": "831" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0827-01" ] }, { "cite": "212 Ill. App. 3d 751", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2600558 ], "pin_cites": [ { "page": "752" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0751-01" ] } ], "analysis": { "cardinality": 543, "char_count": 10104, "ocr_confidence": 0.784, "pagerank": { "raw": 6.304987280960517e-08, "percentile": 0.38793960574535424 }, "sha256": "07d3d52ea195a055a2773d8767acf812d6d134275977c14fb53f913a3abce708", "simhash": "1:3ef3d7129b5f367f", "word_count": 1713 }, "last_updated": "2023-07-14T21:56:33.012273+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CARL CURATOLA, Plaintiff-Appellant, v. THE VILLAGE OF NILES, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE JOHNSON\ndelivered the opinion of the court:\nPlaintiff, Carl Curatola, brought this negligence action against defendant, the Village of Niles, to recover for an injury he received when he fell on Elizabeth Street in Niles, Illinois. The circuit court of Cook County ordered summary judgment in favor of defendant and denied plaintiff\u2019s motion to reconsider. The sole issue on appeal is whether defendant owed a legal duty to plaintiff and therefore whether the trial court erred in denying plaintiff\u2019s motion to reconsider the entry of summary judgment in favor of defendant.\nWe affirm.\nOn March 2, 1983, plaintiff was working as a truck driver for Yellow Freight System. He was delivering freight to Joseph\u2019s Electric, located on the corner of Elizabeth Street and Milwaukee Avenue in the Village of Niles. An employee of Joseph\u2019s Electric instructed plaintiff to park his truck and attached trailer. Plaintiff\u2019s vehicle was positioned approximately six inches from the curb. After the delivery was unloaded, plaintiff walked to the rear door of the trailer. As he was pulling the trailer door closed, he stepped down to the ground with his right foot and into a pothole. Plaintiff\u2019s foot twisted and he fell.\nThere are three elements to prove in an action for negligence: the existence of a duty, a breach of that duty, and an injury proximately resulting from a breach of that duty. Whether a duty exists is a question of law. Ramirez v. City of Chicago (1991), 212 Ill. App. 3d 751, 752.\nPlaintiff contends that defendant owed him a duty of exercising ordinary care to maintain its property in a reasonably safe condition for intended or permitted users who are using the property in a reasonably foreseeable manner. Plaintiff argues that this duty arises pursuant to the Illinois Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 3 \u2014 102(a)), which provides in relevant part as follows:\n\u201cExcept as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.\u201d (Emphasis added.)\n(See Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 830.)\nA doctrine has developed with respect to the duties of a municipality to pedestrians not using the crosswalk. No duty is owed to pedestrians who use the public streets as walkways and walk outside of the crosswalks. Such a duty would overextend a municipal function. (Greene v. City of Chicago (1991), 209 Ill. App. 3d 311, 313, citing Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911.) Plaintiff\u2019s underlying contention is that the fact situation of the instant case sets it apart from this doctrine.\nPlaintiff stated that he was the driver of a legally parked vehicle. Further, he contends that his exit from the driver\u2019s side onto the street was foreseeable. Plaintiff argues that no great burden would be imposed upon the municipality for it to exercise ordinary care in the area of the street where parking is permitted as well as in the adjacent area.\nA case addressing this issue of foreseeability is Wojdyla v. City of Park Ridge (1991), 209 Ill. App. 3d 290. That case involved a pedestrian who was struck by an automobile while crossing a thoroughfare lined with commercial buildings and residential dwellings on his way to his parked car.\nIn stating that foreseeability is not the sole factor in assessing a duty, the Wojdyla court reiterated the principle set forth by the supreme court, which observed: \u201c \u2018The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account.\u2019 \u201d Wojdyla, 209 Ill. App. 3d at 297-98, quoting Lance v. Senior (1967), 36 Ill. 2d 516, 518.\nPlaintiff cites Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, to support his contention that the burden he wishes to place on the Village of Niles is reasonable. Di Domenico involved a plaintiff who parallel parked his car and walked on the street side to remove some items from the trunk. In so doing, he fell into a hole that was near his vehicle. In that case, the court argued that by allowing parking on the street, a municipality should recognize \u201cthe necessity of pedestrians walking in the street and using a portion of it as a pathway, as means of ingress and egress to and from their vehicles.\u201d Di Domenico, 171 Ill. App. 3d at 295.\nThe plaintiff in Di Domenico was legally parked. In a motion to reconsider, plaintiff in the case at bar provided evidence that he too was legally parked. Counteraffidavits on this issue were not filed. However, even assuming plaintiff was legally parked, the holding of Di Domenico has been called into doubt by Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, 914.\nVlahos involved a plaintiff who was injured when he fell into a hole while stepping off the curb en route to the driver\u2019s side of his truck. Plaintiff in that case and plaintiff here have a similar argument. They both assert that defendant permitted and intended the area where the respective incidents occurred to be used for parking. A further contention in both cases is that use of the immediate area around the vehicles was foreseeable and intended by the municipalities in each case.\nVlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, relied upon Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, and Risner v. City of Chicago (1986), 150 Ill. App. 3d 827. This is noted by plaintiff in the instant case as a means to distinguish Vlahos from the case at bar. Still, the principles brought forth from these two cases remain valid. A municipality has no duty to warn pedestrians not using the crosswalk. (Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 831.) Further, it is reasonable for a municipality to foresee that streets will be used only for vehicular traffic. Vance v. City of Chicago (1990), 199 Ill. App. 3d 652, 654; Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 332.\nTorres v. City of Chicago (1991), 218 Ill. App. 3d 89, is a case that has been decided since the instant case was briefed. Its holding supports plaintiff\u2019s argument in the case at bar. Torres involves a plaintiff who alighted from his automobile after parking it on the street. He exited on the street side and continued to the rear of the vehicle to remove groceries from the trunk. He was injured when he fell into a pothole near the trunk of the automobile.\nTorres acknowledges the duty of a municipality as set forth in Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, but instead relies upon Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, Princivalli v. City of Chicago (1990), 202 Ill. App. 3d 525, and Marshall v. City of Centralia (1991), 143 Ill. 2d 1. Di Domenico has already been called into question by Vlahos. Princivalli and Marshall are also distinguishable.\nIn Princivalli, the court reversed the entry of summary judgment for the City of Chicago because its motion did not address the threshold issues of permitted and intended use, and reasonable foreseeability. It is plausible to consider plaintiff\u2019s use of his delivery truck as foreseeable. Nevertheless, the duty of a municipality has never been extended to include deliverymen utilizing the street as an unloading zone. Plaintiff was not prohibited from having his truck unloaded on the street in front of Joseph\u2019s Electric. Yet his being permitted to do so does not include him in the category of \u201cintended and permitted\u201d users under the Illinois Local Governmental and Governmental Employees Tort Immunity Act. (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 85, par. 3 \u2014 102(a).) The importance of this determination was emphasized by the Illinois Supreme Court and noted in Torres as follows:\n\u201cOur supreme court has recently had the opportunity to evaluate the City\u2019s duty under the Tort Immunity Act. In Marshall v. City of Centralia (1991), 143 Ill. 2d 1, 570 N.E.2d 315, the court found that the defendant\u2019s duty is limited by the language of the Tort Immunity Act and, therefore, whether the defendant owed the plaintiff a duty requires the court to determine whether the plaintiff was an intended and permitted user of the property.\u201d Torres v. City of Chicago (1991), 218 Ill. App. 3d 89, 92.\nThe duty of care required from a municipality cannot be extended to account for the seemingly endless scope of foreseeable use. The necessity of imposing a limitation on municipal duty was noted in Householder v. City of Bunker Hill (1988), 172 Ill. App. 3d 1037:\n\u201cThe reluctance of the courts to place a duty upon municipalities to use care to maintain streets in a safe condition for pedestrians other than places designated as crossings must arise from the magnitude of the burden of doing so when compared with the likelihood streets will be used for that purpose.\u201d (Householder, 172 Ill. App. at 1039.)\nMunicipalities cannot be subject to the unreasonable financial burden of every foreseeable user.\nFor the foregoing reasons, we affirm the trial court\u2019s order granting defendant\u2019s motion for summary judgment.\nAffirmed.\nJIGANTI, P.J., and LINN, J., concur.", "type": "majority", "author": "JUSTICE JOHNSON" } ], "attorneys": [ "Steinberg, Polacek & Goodman and Lewis, Davidson & Hetherington, Ltd., both of Chicago (Ann-Louise Kleper and Bruce D. Goodman, of counsel), for appellant.", "Richard T. Ryan and Mark F. Smolens, both of Flynn, Murphy, Ryan & Seyring, of Chicago, for appellee." ], "corrections": "", "head_matter": "CARL CURATOLA, Plaintiff-Appellant, v. THE VILLAGE OF NILES, Defendant-Appellee.\nFirst District (4th Division)\nNo. 1\u201490\u20142401\nOpinion filed February 27,1992.\nSteinberg, Polacek & Goodman and Lewis, Davidson & Hetherington, Ltd., both of Chicago (Ann-Louise Kleper and Bruce D. Goodman, of counsel), for appellant.\nRichard T. Ryan and Mark F. Smolens, both of Flynn, Murphy, Ryan & Seyring, of Chicago, for appellee." }, "file_name": "0743-01", "first_page_order": 763, "last_page_order": 767 }