Warning v. City of Joliet

ILLINOIS OFFICIAL REPORTS

Appellate Court

Warning v. City of Joliet, 2012 IL App (3d) 110309

Appellate Court KRISTINE WARNING, as Independent Executor of the Estate of Joanne

Caption M. Warning, Deceased, Plaintiff-Appellant, v. THE CITY OF JOLIET,

a Municipal Corporation, Defendant-Appellee (Amanda M. Ibarra,

Defendant).

District & No. Third District

Docket No. 3-11-0309

Filed August 22, 2012

Held A verdict was properly directed for defendant city in an action for the

(Note: This syllabus fatal injuries suffered by plaintiff’s decedent when she was struck by a

constitutes no part of vehicle while crossing a street inside a crosswalk, since the city had no

the opinion of the court duty of reasonable care with regard to the lighting and crosswalks at the

but has been prepared scene, and there was no evidence the city had actual or constructive

by the Reporter of notice that the streetlights were not operating or that it failed to make a

Decisions for the reasonable inspection or failed to erect additional signs.

convenience of the

reader.)

Decision Under Appeal from the Circuit Court of Will County, No. 06-L-650; the Hon.

Review Barbara Petrungaro, Judge, presiding.

Judgment Affirmed.

Counsel on Andrew A. Muchoney (argued), of McKeown Fitzgerald Zollner Buck

Appeal Hutchison & Ruttle, of Joliet, for appellant.

John P. Wise (argued), Assistant Corporation Counsel, of Joliet, for

appellee.

Panel JUSTICE LYTTON delivered the judgment of the court, with opinion.

Presiding Justice Schmidt and Justice Carter concurred in the judgment

and opinion.

OPINION

¶1 Plaintiff, Kristine Warning, as independent executor of the estate of Joanne M. Warning,

filed an action against defendant, City of Joliet (City), to recover damages for personal

injuries her mother sustained when she was struck by a vehicle while crossing the street

inside a crosswalk. Following plaintiff’s case-in-chief, the trial court entered a directed

finding in favor of the City. On appeal, plaintiff claims that the trial court erred in finding (1)

that the City did not owe a duty of reasonable care relating to street lighting and crosswalks

on Madison Street, (2) that no evidence was presented as to actual or constructive notice that

certain streetlights were inoperable, and (3) that no evidence was presented that the City

failed to make a reasonable inspection of the crosswalk or failed to erect additional signage

around the crosswalk. We affirm.

¶2 Plaintiff filed a complaint against the City alleging that it was liable for injuries Joanne,

age 79, suffered when she was struck by a vehicle driven by Amanda Ibarra on Madison

Street outside Provena Hospital on September 5, 2005. Joanne died from the injuries a few

weeks later. Plaintiff alleged that her mother’s death was the result of the City’s negligence.

Specifically, the complaint alleged that the City failed to (1) maintain the streetlamps on

Madison Street, (2) warn of the inoperative streetlamps near the crosswalk, (3) make a

reasonable inspection of the crosswalk, and (4) have or follow procedures for the inspection

of streetlamps at crosswalks.

¶3 At the bench trial, Jesse Harper testified that he was employed by Provena as a full-time

security officer from May of 2005 through September or October of 2007. His job was to

ensure the safety of the employees and visitors of the hospital. He observed the roadways and

lighting around Provena. From June or July 2005 through September 2005, he noticed

several inoperable streetlights on Madison Street. Typically, during that time, he noted about

one per week. When he found a streetlight that was out, he would mark the inoperable light

with yellow caution tape. He testified that the light at the parking lot on the east side of

Madison Street was out the night of the accident and prior to the accident, but he did not

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know for how long.

¶4 Harper testified that it was not his responsibility to tell the City that the lights were out.

He simply reported them to his supervisor. He was not aware of any reports made to the City

about streetlights at the parking lot on Madison.

¶5 On September 5, 2005, he remembered a woman being struck in the crosswalk. He did

not see the accident but he heard the screeching brakes. Harper went to the crosswalk and

saw Joanne on the ground in front of a vehicle. He testified that it was dark outside at the

time of the accident and that he did not look specifically at the streetlights.

¶6 Amanda Ibarra testified that she works as a nurse at Provena. On September 5, 2005, she

worked until 2:30 p.m. and then stayed beyond her shift. She worked more than 14 hours that

day. She left the employee parking lot on the Madison Street side that evening. The road was

dry, and it was dark out. The lights on her car automatically turned on. She was able to see

the roadway when she pulled out. Before entering the crosswalk on Madison, she slowed

down, but she hit a pedestrian. Although she applied her brakes as soon as she saw the

woman, it was too late. The woman was walking in her lane of traffic and was wearing dark

clothing. Ibarra testified that she believed the lighting affected her ability to see the woman.

¶7 Prior to September 5, 2005, she had no knowledge of any streetlights out on Madison

Street. The crosswalk was illuminated that evening, but she did not know if the light was on

the crosswalk or how the crosswalk was lit.

¶8 Officer Shana Murnane testified that there are no policies at the City police department

as to reporting streetlight outages. Officers could report streetlight outages if they see them,

but there are no written policies.

¶9 As part of her job, Murnane reconstructs accident scenes. On September 5, 2005, she

investigated the crosswalk on Madison Street. The roadway had average nighttime lighting.

Although there were streetlights in the area, the streetlight on the east side of the street,

approximately 80 feet to the south of the crosswalk, was not operational. There was no

yellow caution tape tied around the pole. There was another operational street light 100 feet

to the north of the crosswalk. There was also ambient lighting from the moon, parking lot

and the entrance to the hospital.

¶ 10 Officer Michael Rouse testified that there was no policy in 2005 for the police officers

to report streetlight outages or hazardous road conditions. On September 5, 2005, he reported

to the scene of the accident in front of the hospital. Officer Rouse was the lead

reconstructionist, and it was his responsibility to gather evidence at the scene. He noticed that

a streetlight was out to the south of the crosswalk. He testified that the Joliet police

department tied yellow tape around the pole of that light. No other markings were on the pole

at that time. He did not know if the light was out at the time of the accident. He also noted

that there was other ambient lighting, including a smaller light pole at the other end of the

crosswalk in the hospital’s driveway. Although the diagram of the scene showed a streetlight

directly above the crosswalk, that was an error. There are no lights directly over the

crosswalk. There is a streetlight 100 feet to the north of the crosswalk. There is also another

streetlight to the south, but Officer Rouse did not know how far away it was.

¶ 11 Dennis Mulcahy testified that he has been a security officer for the hospital for 7½ years.

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He patrols the parking lots and the hospital building nearby. He is responsible for patrolling

Madison Street, including the crosswalk and the visitor’s parking lot. Prior to September 5,

2005, he observed streetlight outages around Provena. He saw several streetlights out on

Madison Street in 2005.

¶ 12 On September 5, 2005, he heard a thud and screeching tires and turned to see a woman

lying in the street with a car in the crosswalk. Mulcahy testified that he believed some

streetlights were out that night and that some streetlights had not been working for some

time, but he did not know which lights were out or how long they had been out before the

accident. Mulcahy never called the City regarding streetlight outages, and he did not recall

if he ever informed anyone on the date of the accident that there were streetlights out on

Madison Street. He did not prepare any written report.

¶ 13 Clarke Corcoran works at Provena. On September 13, 2002, he sent a letter to the City

regarding complaints that the hospital’s safety committee had received about the crosswalk

on Madison Street. Specifically, the letter referred to problems with traffic refusing to slow

down for people within the crosswalk. The letter did not refer to any problem with lighting.

¶ 14 Karen Plyman is employed with the City of Joliet as an information service technician.

She oversees the mail room and processes citizen complaints. If she receives a call of a

streetlight outage, she faxes it either to ComEd or the City public works, depending on the

location and type of pole. If she receives a complaint about streetlight outages of lights on

wooden poles, she refers it to ComEd because ComEd maintains the wooden poles.

¶ 15 The City keeps a log of outages. Plyman reviewed the file from 2000 to 2005 and did not

find any complaint of a streetlight outage or malfunctioning streetlight on Madison Street

near the hospital during the time of the accident.

¶ 16 Russell Lubash testified that he is the traffic engineer for the City and has been for the

past six or seven years. He is responsible for traffic-related engineering projects, including

the maintenance of streetlights and traffic signals. Street lighting design depends on the

project and the road classification, as well as City standards for spacing streetlights. The City

guidelines require that streetlights be placed 250 feet apart.

¶ 17 Lubash maintains a log of complaints regarding streetlights and poles. If he receives a

complaint, he reports it to the electrical department. The City keeps a log of all complaints

and forwards those that do not involve City poles to ComEd. Once a month, electricians turn

on the cabinets to the streetlights and perform routine maintenance.

¶ 18 Lubash stated that the streetlight in question was probably installed in the 1960s when

the hospital was built. The streetlight is maintained on a wooden pole and owned by ComEd.

Lubash further testified that neither the Manual of Uniform Traffic Control Devices

(MUTCD) nor the American National Standards Institute requires periodic studies to be

conducted concerning streetlights on roadways after they are installed. Lubash noted that the

Illuminating Engineering Society of North America (IESNA) publishes recommended

practices for streetlights. However, the IESNA recommendations pertain only to new

streetlight system installations and do not apply to old ones.

¶ 19 Lubash further testified that for a marked crosswalk, the MUTCD requires that the

walkway be outlined from one location to the other with six-inch-thick white striping. The

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Madison Street crosswalk was restriped in 2004. At that time, the City adopted the option

to improve the crosswalk by painting large parallel bar markings in the direction of traffic

across the entire roadway. The stripes were painted 12 inches thick. This option was adopted

above the MUTCD requirement to provide greater visibility.

¶ 20 Lubash stated that the crosswalk sign at the scene of the accident meets the MUTCD

standards. Although the guidelines are reviewed and revised periodically, the MUTCD does

not require the replacement of a noncompliant sign to current standards if the sign previously

met the basic installation standards. Lubash testified that the crosswalk signage in this case

met the installation standards under the MUTCD at the time it was installed. Whether to

modify the crosswalk to include a downward pointing arrow as required in the updated

MUTCD standards, which were revised after the crosswalk was installed, was based on his

judgment and the visibility of the current crosswalk.

¶ 21 Following plaintiff’s case-in-chief, the City moved for a directed finding. The trial court

concluded that the plaintiff failed to present sufficient evidence to sustain her burden of proof

and entered judgment in favor of the City.

¶ 22 I

¶ 23 When ruling on a motion for a directed finding, the trial court must employ a two-step

analysis. First, the court must determine as a matter of law whether the plaintiff has presented

a prima facie case. Law Offices of Colleen M. McLaughlin v. First Star Financial Corp.,

2011 IL App (1st) 101849. A plaintiff presents a prima facie case when he or she presents

some evidence on each element essential to the cause of action. Minch v. George, 395 Ill.

App. 3d 390 (2009). Second, if the plaintiff has presented some evidence on each element,

the court then must consider and weigh the totality of the evidence presented. Law Offices

of Colleen M. McLaughlin, 2011 IL App (1st) 101849, ¶ 39.

¶ 24 If the trial court finds that the plaintiff has failed to establish a prima facie case as a

matter of law, the appellate standard of review is de novo. Minch, 395 Ill. App. 3d at 398.

However, if the trial court moves on to consider the weight and quality of the evidence and

finds that no prima facie case remains, the appellate standard of review is manifest weight

of the evidence. Gorski v. Board of Fire & Police Commissioners, 2011 IL App (2d) 100808.

A decision is against the manifest weight of the evidence if the opposite conclusion is clearly

apparent. Id. ¶ 34.

¶ 25 II

¶ 26 Plaintiff first argues that she presented a prima facie case that the City had a duty to

maintain the streetlights on Madison Street.

¶ 27 A municipality has a common law duty to maintain its property in a reasonably safe

condition. Swett v. Village of Algonquin, 169 Ill. App. 3d 78 (1988). That duty has been

codified in section 3-102(a) of the Illinois Local Governmental and Governmental

Employees Tort Immunity Act, which provides:

“Except as otherwise provided in this Article, a local public entity has the duty to

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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.” 745 ILCS 10/3-102(a) (West 2006).

¶ 28 However, a municipality’s duty to maintain public property does not apply to streets or

other property it does not own. Janssen v. City of Springfield, 79 Ill. 2d 435 (1980).

Moreover, a city has no common law duty to light its streets. See 19 Beth A. Buday et al.,

McQuillin on Municipal Corporations § 54.101 (3d rev. ed. 1994); see generally Greene v.

City of Chicago, 73 Ill. 2d 100 (1978); Horneyer v. City of Springfield, 98 S.W.3d 637 (Mo.

Ct. App. 2003). A municipality’s duty to provide streetlights is limited to situations in which

illumination is necessary to avoid dangerous and potentially hazardous conditions. Thompson

v. City of New York, 585 N.E.2d 819, 820 (N.Y. 1991). An intersection that is large and busy

does not qualify, in and of itself, as a dangerous or potentially hazardous condition

(Thompson, 585 N.E.2d at 820), and the mere outage of streetlights at an intersection does

not render a reasonably safe street dangerous (Horneyer, 98 S.W.3d at 645). Nevertheless,

where a city undertakes to provide streetlights, it is liable if it does so in an insufficient or

inadequate manner. Greene, 73 Ill. 2d at 108-09.

¶ 29 Here, the evidence demonstrated that the City did not own the streetlight located 80 feet

from the crosswalk. Lubash, the city traffic engineer, testified that the lights on Madison

Street were owned and maintained by ComEd. As a result, any complaint the City received

of an inoperable light on Madison Street was forwarded to ComEd. Moreover, the testimony

at trial showed that the City had not undertaken to provide a streetlight to illuminate the

crosswalk in front of Provena. Lubash testified that the streetlight in question was installed

when the hospital was built and that the purpose of the streetlight was to illuminate the

roadway, not the crosswalk. Based on these undisputed facts, the trial court properly

concluded that the City did not have a duty to maintain the streetlights on Madison Street.

¶ 30 III

¶ 31 Plaintiff claims that the trial court erred in finding that there was no actual or constructive

notice given to the City that a streetlight on Madison Street was inoperable until after the

accident.

¶ 32 Plaintiff is correct that sufficient notice of a dangerous condition may give rise to a

breach of duty by the defendant if the condition is left uncorrected. See Cochran v. George

Sollitt Construction Co., 358 Ill. App. 3d 865 (2005). However, under the facts of this case,

actual notice can only be established by showing that someone reported the unilluminated

streetlamp to the City. No facts exist demonstrating such notice. Plyman testified that the

City maintains a log of outages. She reviewed the file from 2005 and did not find any

complaints regarding streetlight outages or malfunctions on Madison Street in front of the

hospital. Lubash testified that he also maintains a log of streetlight complaints. He reviewed

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his log for 2004 through 2005 and did not find any complaints of a streetlamp outage on

Madison near the area of the accident. Plaintiff’s claim that the correspondence of Clarke

Corcoran provided actual notice of inoperative streetlights on Madison Street also fails. The

letter stated concerns that motorists were not watching for pedestrian traffic and would not

slow down. It did not mention poor lighting, streetlights or illumination issues. In addition,

although Harper testified that he frequently noticed streetlight outages on Madison, he

admitted that he never notified the City. The record demonstrates that plaintiff failed to

present sufficient evidence that the City had actual notice that the light near the crosswalk

was inoperable at the time of the accident.

¶ 33 Plaintiff argues that the record supports an inference of constructive notice on the part

of the City. We disagree. Constructive notice can only be established where the dangerous

condition is shown to exist for a sufficient length of time to impute knowledge of its

existence to the defendant. Pavlik v. Wal-Mart Stores, Inc., 323 Ill. App. 3d 1060 (2001).

Here, there are no facts that show the length of time the streetlight was out. While plaintiff

claims that the light had been inoperable for several days before the accident, nothing in the

record supports that claim. Harper testified that he noticed the streetlamp south of the

crosswalk had not been working in the past. However, he could not say whether it was

illuminated at the time of the accident. Without further corroboration, his testimony fails to

establish constructive notice. See City of Ottawa v. Hayne, 114 Ill. App. 21 (1904)

(constructive notice demonstrated by duration, location and conspicuousness of the hazard).

¶ 34 IV

¶ 35 Plaintiff also claims that the City failed to make a reasonable inspection of the crosswalk.

¶ 36 A municipality owes a duty of reasonable care to pedestrians who walk in a street inside

of or within the boundaries of a crosswalk. Ramirez v. City of Chicago, 212 Ill. App. 3d 751

(1991).

¶ 37 Lubash testified that the crosswalk was restriped in 2004. The crosswalk was repainted

to include parallel bar markings to the traffic that were 12 inches wide, rather than the

required 6 inches. Lubash also stated that the new striping exceeded MUTCD standards and

provided greater visibility. Plaintiff failed to present any evidence that contradicted the city

engineer’s position. Thus, the evidence at trial demonstrated that the City inspected the

crosswalk and made adequate improvements. The trial court’s finding that the City made a

reasonable inspection of the crosswalk was not error.

¶ 38 V

¶ 39 Last, plaintiff argues that the trial court erred in finding that there was “no evidence” that

the City violated any duty by its installation or maintenance of the crosswalk or that the City

had a duty to erect additional signage around the crosswalk.

¶ 40 In her case-in-chief, plaintiff failed to show that the City violated its duty to install and

maintain the crosswalk in a reasonably safe manner. The uncontested evidence established

that the City’s initial crosswalk installation met the recommended guidelines. Under the

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MUTCD, the crosswalk sign present at the time of the accident met the installation standards

because, as Lubash testified, it met the standards that existed at the time it was initially

installed. Plaintiff argued below that the crosswalk should have included a downward arrow

painted on the roadway, but she failed to show that the City was required to provide such

signage or that the crosswalk failed to meet the standards at the time it was installed.

¶ 41 Plaintiff attempts to bolster her argument that the City was negligent in failing to erect

additional signage and failing to properly maintain the crosswalk by asserting that the trial

court erred in refusing to allow her expert, Joseph Regis, to testify. A trial court is granted

considerable discretion in ruling on matters of discovery. City of Chicago v. St. John’s

United Church of Christ, 404 Ill. App. 3d 505 (2010). Nevertheless, the purpose of discovery

is not to punish the offending party. See Besco v. Henslee, Monek & Henslee, 297 Ill. App.

3d 778 (1998). An objection based upon timeliness of disclosure of an expert witness must

be weighed in context with (1) surprise to the adverse party, (2) prejudicial effect, (3) nature

of the expert’s testimony, (4) diligence of the adverse party, (5) whether the objection was

timely, and (6) the good faith of the party calling the witness. Id. at 783.

¶ 42 Here, plaintiff sought to disclose Regis as an expert witness three weeks before the

September 30, 2010, trial date. However, plaintiff failed to disclose Regis as a controlled

expert witness in its answer to Supreme Court Rule 213(f) interrogatories filed in August of

2009. See Ill. S. Ct. R. 213(f) (eff. July 1, 2001). In addition, plaintiff did not provide the

conclusions or opinions of Regis and failed to disclose any reports prepared by him. Instead,

plaintiff filed an emergency motion for leave to supplement discovery days before trial and

attached a September 2002 memorandum from Clarke Corcoran to Dennis Duffield in

support of the expert’s opinion. Plaintiff failed to act diligently in her disclosure of this

witnesses. Based on the untimeliness of her request, her failure to abide by Supreme Court

Rule 213(f), and her failure to disclose appropriate records in support of the expert, the trial

court’s decision to deny her motion was not an abuse of discretion.

¶ 43 Based on the record before us, we find no error in the trial court’s ruling that plaintiff

failed to sustain her burden of proof as to negligence or that the City was entitled to a

directed verdict.

¶ 44 CONCLUSION

¶ 45 The judgment of the circuit court of Will County is affirmed.

¶ 46 Affirmed.

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