{ "id": 173591, "name": "BEVERLY THOMAS, Plaintiff-Appellee, v. THE TOWN OF CICERO, Defendant-Appellant", "name_abbreviation": "Thomas v. Town of Cicero", "decision_date": "1999-09-29", "docket_number": "No. 1-99-1120", "first_page": "840", "last_page": "846", "citations": [ { "type": "official", "cite": "307 Ill. App. 3d 840" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "712 N.E.2d 842", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "305 Ill. App. 3d 536", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1208033 ], "weight": 5, "year": 1999, "pin_cites": [ { "page": "544" }, { "page": "544" }, { "page": "544" }, { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/0536-01" ] }, { "cite": "86 N.E. 93", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1908, "opinion_index": 0 }, { "cite": "236 Ill. 383", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3383382 ], "year": 1908, "pin_cites": [ { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/ill/236/0383-01" ] }, { "cite": "669 N.E.2d 1189", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "283 Ill. App. 3d 161", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182788 ], "weight": 6, "year": 1996, "pin_cites": [ { "page": "163" }, { "page": "163-64" }, { "page": "164" }, { "page": "164" }, { "page": "162-63", "parenthetical": "duty is a question of law, and a municipality's duty to maintain its property is limited by section 3 - 102" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0161-01" ] }, { "cite": "571 N.E.2d 822", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "212 Ill. App. 3d 751", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2600558 ], "year": 1991, "pin_cites": [ { "page": "753" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0751-01" ] }, { "cite": "608 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "154 Ill. 2d 201", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820496 ], "year": 1993, "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0201-01" ] }, { "cite": "702 N.E.2d 535", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "183 Ill. 2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209972 ], "year": 1998, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0520-01" ] }, { "cite": "651 N.E.2d 690", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "272 Ill. App. 3d 903", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 253300 ], "year": 1995, "pin_cites": [ { "page": "906" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0903-01" ] }, { "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 ], "year": 1991, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0001-01" ] }, { "cite": "378 N.E.2d 502", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "72 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5444072 ], "year": 1978, "pin_cites": [ { "page": "104-05" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0100-01" ] }, { "cite": "691 N.E.2d 191", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "294 Ill. App. 3d 520", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35368 ], "year": 1997, "pin_cites": [ { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0520-01" ] } ], "analysis": { "cardinality": 628, "char_count": 11758, "ocr_confidence": 0.819, "pagerank": { "raw": 7.862230296827181e-08, "percentile": 0.4590257964846599 }, "sha256": "a67b731bc5cb42c68ecaaec4a9feb8e2e2e7964d1bd6aa006880b93420cacc8b", "simhash": "1:18cd908212e2d529", "word_count": 2024 }, "last_updated": "2023-07-14T21:00:41.446378+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BEVERLY THOMAS, Plaintiff-Appellee, v. THE TOWN OF CICERO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nStreets are for vehicles. Sidewalks and crosswalks are for pedestrians. But what about alleys? The plaintiff in this case walked in a Town of Cicero (Cicero) alley. She stepped into a crack and fell, injuring herself.\nThe question before us is whether Cicero intended that the plaintiff walk in the part of the alley where she fell. If it did not, the money damages judgment entered against Cicero cannot stand.\nAfter examining where the plaintiff walked and why she walked there, we conclude she was not an intended user. For that reason, we vacate the jury\u2019s verdict in her favor and remand the cause to the trial court with directions to enter a judgment for the defendant notwithstanding the verdict.\nFACTS\nFor her fifty-eighth birthday on September 9, 1997, Beverly Thomas (Beverly) planned to have lunch with her son. Driving by her next-door neighbor Bernice\u2019s garage sale on the way to lunch, Beverly, a self-confessed \u201cgarage sale fanatic,\u201d spied a canister vacuum cleaner. Beverly needed a vacuum cleaner, but hesitated to purchase this one from Bernice when she saw the $50 price. Her son offered to buy the vacuum cleaner for Beverly as a birthday present, and Beverly accepted.\nWhen Beverly and her son returned from lunch, Beverly wanted to try her present \u201cright away,\u201d but found the vacuum cleaner had \u201cvery poor suction.\u201d Beverly wanted her son to return it to Bernice, but her son was embarrassed and took the vacuum cleaner back to Bernice without an explanation. Beverly agreed to explain the vacuum cleaner\u2019s problems to Bernice later that afternoon.\nAfter her son left, Beverly went through her backyard to put a bag of trash in her alley garbage can. Beverly then planned to use a shortcut down the alley, rather than the sidewalk in front of her house and around the corner, to get to Bernice\u2019s garage. After depositing her trash, Beverly turned, stepped toward the middle of the alley, walked a few feet down the alley, tripped, and fell on a crack near the middle of the alley, breaking every finger in her right hand.\nFour months later, Beverly sued Cicero for negligently failing to maintain the alley.\nAt trial, Beverly testified September 9 was sunny, clear, and dry. Beverly said when she fell, she was looking straight ahead, contemplating her explanation to Bernice about the vacuum cleaner\u2019s return. Beverly had lived in her Cicero home since 1972, raising her seven children there. Beverly had noticed the crack in the alley for \u201ca number of years,\u201d but never alerted Cicero, preferring to keep her complaints to herself and avoiding the crack as she walked down the alley.\nBeverly\u2019s husband, Frank Thomas (Frank), testified he noticed the crack in August 1985 and reported it to Cicero officials. .Frank acknowledged pedestrians regularly used the alley for \u201cshortcuts and things.\u201d\nSam Jelic (Jelic), Cicero\u2019s commissioner of public works, testified Cicero\u2019s alleys are \u201ceasements for people to get in their garages, utilities, electric, cable, garbage.\u201d Cicero does not maintain its alleys for pedestrians. Jelic said Cicero has alley inspectors who tour the town\u2019s alleys every two or three weeks, looking for cracks in need of repair. After examining photos of the crack where Beverly fell, Jelic agreed \u201cit possibly needs to be patched.\u201d\nThe jury answered two special interrogatories. First, the jury found Beverly was \u201can intended and permitted user of the alley.\u201d Second, the jury found Cicero had \u201cactual or constructive notice\u201d of the crack where Beverly fell. The jury returned a verdict of $78,642, but decided Beverly was 45% negligent and awarded only $35,389. On March 10, 1999, the court entered judgment on this verdict, and on March 25, 1999, the court denied Cicero\u2019s motion to vacate and motion for judgment notwithstanding the verdict. This appeal followed.\nDECISION\nInitially, we note Cicero\u2019s discussion of our standard of review is limited to this cursory, unsupported statement in its opening brief: \u201cThe motions to dismiss and for directed finding should have been granted as there was no genuine issue as to any material fact and the Town was entitled to judgment as a matter of law.\u201d Cicero\u2019s brief violates the clear mandate of Supreme Court Rule 341(e)(3): \u201cThe appellant must include a concise statement of the applicable standard of review for each issue, with citation to authority, either in the discussion of the issue in the argument or under a separate heading placed before the discussion in the argument.\u201d 177 Ill. 2d R. 341(e)(3). Despite this omission, we choose to reach the merits of Cicero\u2019s appeal. See Merrifield v. Illinois State Police Merit Board, 294 Ill. App. 3d 520, 527, 691 N.E.2d 191 (1997).\nCicero\u2019s appeal raises three issues that do not warrant prolonged discussion: the crack was a de minimis, nonactionable defect; the crack was an open and obvious defect; and Cicero had no actual or constructive notice of the crack. The record contains enough evidence to submit these issues for the jury\u2019s consideration. See Warner v. City of Chicago, 72 Ill. 2d 100, 104-05, 378 N.E.2d 502 (1978). The jury decided these fact issues in favor of Beverly, and we cannot say these findings were against the manifest weight of the evidence.\nCicero\u2019s central contention before trial, during trial, and on appeal is that it owed no duty to Beverly because Beverly was not an intended and permitted user of the alley. The .issue of whether a duty exists is a question of law for the court (Marshall v. City of Centralia, 143 Ill. 2d 1, 6, 570 N.E.2d 315 (1991)), and our review is de novo.\nSection 3\u2014102(a) of the Local Governmental and Governmental Employees Tort Immunity Act provides:\n\u201c[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 745 ILCS 10/3 \u2014 102(a) (West 1996).\nUnder section 3 \u2014 102(a), the municipality\u2019s duty depends on whether the plaintiff was a permitted and intended user of the defective public property on which she was injured. Scarse v. City of Chicago, 272 Ill. App. 3d 903, 906, 651 N.E.2d 690 (1995). \u201c[A]n intended user of property is, by definition, also a permitted user; a permitted user of property, however, is not necessarily an intended user.\u201d Boub v. Township of Wayne, 183 Ill. 2d 520, 524, 702 N.E.2d 535 (1998).\nOrdinarily, a municipality owes no duty of care to a pedestrian who walks in or crosses a public roadway outside a crosswalk. Curatola v. Village of Niles, 154 Ill. 2d 201, 208, 608 N.E.2d 882 (1993). But a municipality does owe a duty to reasonably maintain its crosswalks for pedestrians. Ramirez v. City of Chicago, 212 Ill. App. 3d 751, 753, 571 N.E.2d 822 (1991).\nIn recent years we twice addressed the question of whether a pedestrian walking in an alley is an intended and permitted user of public property. The \u201cpermitted\u201d part is fairly easy and does not require extended discussion. Cicero does not seriously contend Beverly lacked permission to walk in the alley near the rear of her home. But it does insist it intended the part of the alley she used would be for vehicles, not people. We agree with the town.\nIn Khalil v. City of Chicago, 283 Ill. App. 3d 161, 669 N.E.2d 1189 (1996), the plaintiff, while walking down an alley to a nearby restaurant, tripped on a hole in the middle of the alley. The plaintiff sued the city, and the trial court granted summary judgment to the city.\nOn appeal, we noted \u201ca plaintiff must be not only a legally permitted user of the public property, but also an intended user.\u201d Khalil, 283 Ill. App. 3d at 163. We said: \u201c[A]n alley is a roadway designed for vehicular traffic, and the duty imposed upon a municipality under section 3 \u2014 102(a) is the same as that imposed for a street.\u201d Khalil, 283 Ill. App. 3d at 163-64, citing J. Burton Co. v. City of Chicago, 236 Ill. 383, 388, 86 N.E. 93 (1908). That is, alleys, like streets, are intended for use by vehicles, not pedestrians. Khalil, 283 Ill. App. 3d at 164. And because pedestrians are not intended users of alleys, we held the city owed no duty to the plaintiff to maintain its alleys in a reasonably safe condition. Khalil, 283 Ill. App. 3d at 164.\nWe find Khalil controls this case. Like the plaintiff in Khalil, Beverly was walking down the middle of an alley to a nearby destination when she was injured. And like the plaintiff in Khalil, Beverly was not an intended user of the alley. She was using the alley as if it were a sidewalk. But it was not. Cicero conceded Beverly had an easement for using the alley to put trash into her garbage can. But Beverly had thrown away her garbage and had stepped away from the protection of her easement when she tripped and fell.\nIn the other recent alley case we examined where the pedestrian was walking and why she was walking there. In Kavales v. City of Berwyn, 305 Ill. App. 3d 536, 712 N.E.2d 842 (1999), the plaintiff, while crossing an alley from one sidewalk to another, tripped on uneven pavement in the alley. The plaintiff sued the city. The trial court granted summary judgment to the city.\nOn appeal, we reversed the summary judgment. We found that while the plaintiff \u201cmay not have been in a \u2018crosswalk\u2019 as that word is defined by statute, neither was she in an \u2018alley.\u2019 \u201d Kavales, 305 Ill. App. 3d at 544. Rather, we said, she was in the \u201csidewalk area.\u201d Kavales, 305 Ill. App. 3d at 544. In short, pedestrians are intended users of the area where a sidewalk intersects an alley. Kavales, 305 Ill. App. 3d at 544. That meant the city owed the plaintiff a duty to maintain its property in a reasonably safe condition. Kavales, 305 Ill. App. 3d at 544.\nIt took no great leap of logic for us to conclude in Kavales that a city intends people to walk on the part of the alley that connects one sidewalk section with another. But, here, the record contains no evidence Beverly was using her alley as a crosswalk between sidewalks. She had left the safe harbor that marked the path to her garbage can. She was using the alley as a shortcut to Bernice\u2019s garage, as a substitute for sidewalks that are intended for pedestrians. This case is Khalil, not Kavales.\nAdditionally, the jury\u2019s answer to the first special interrogatory has no effect on our conclusion. The \u201cintended and permitted\u201d determination informs the duty issue, and the duty issue is a question of law. See Khalil, 283 Ill. App. 3d at 162-63 (duty is a question of law, and a municipality\u2019s duty to maintain its property is limited by section 3 \u2014 102).\nCONCLUSION\nBecause Cicero owed no duty to Beverly, the trial court erred in denying the defendant\u2019s postjudgment motion to vacate and motion for judgment notwithstanding the verdict. We reverse the order entering judgment in the plaintiff\u2019s favor, and we remand this cause to the trial court with directions to enter a judgment for the defendant notwithstanding the verdict.\nReversed and remanded with directions.\nCERDA and BURKE, JJ., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Dennis E. Both, of Edward R. Vrdolyak, Ltd., of Chicago, for appellant.", "Marilyn I. Kosin, of Robert S. Kosin, Ltd., of Chicago, for appellee." ], "corrections": "", "head_matter": "BEVERLY THOMAS, Plaintiff-Appellee, v. THE TOWN OF CICERO, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201499\u20141120\nOpinion filed September 29, 1999.\nDennis E. Both, of Edward R. Vrdolyak, Ltd., of Chicago, for appellant.\nMarilyn I. Kosin, of Robert S. Kosin, Ltd., of Chicago, for appellee." }, "file_name": "0840-01", "first_page_order": 858, "last_page_order": 864 }