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MEMO
TO:
James Higginbotham
FROM:
Dominika Zakrzewska
DATE:
November 12, 2001
RE:
Betty Buttersworth adv. City of Chicago
Upon your request, I conduced a research of the Illinois law, and this is the
memo that summarizes my findings. It also evaluates our client's case.
Should you have any questions regarding this memo, please let me know.
FACTS:
Our client is a student in Northwestern Business College. At the day of the
incident, she and her friend were walking towards the Betty's car that was
parked next to the railroad tracks behind the school. While crossing the
alley, Betty fell in a hole in the alley. She sustained serious injuries, and
after receiving $75.000 medical bill from the Lipps Memorial Hospital, she
contacted our firm concerning possible legal action to recover damages.
ISSUE:
Whether under Illinois tort law, Betty was an intended user of an alley and
therefore the City of Chicago is liable for injuries sustained as a result of slip
and fall in the alley, when she parked her car next to the sign indicating time
limit for parking.
CASE LAW:
Thomas v. Town of Cicero, 307 Ill.App.3d 840, 719 N.E.2d 187 (1999)
In this case the plaintiff, Beverly Thomas, bought a vacuum cleaner at her
neighbor's garage sale. However, because she was not happy with the
purchase, she decided to return it the same day. In the afternoon she went
through her backyard to put a bag of trash in her alley garbage can. Then
she planned to make a shortcut down the alley to get to her neighbor's
garage. Right after deposing the garbage, Beverly walked a few feet down
the alley, tripped and fell on a crack near the middle of the alley.
She
suffered several injuries as a result of this fall. Beverly filed negligence
action against the Town of Cicero. Beverly and her husband, Frank, knew
about the crack in the alley for a couple of years. He reported it to the
Cicero officials in 1985, but obviously the alley was never fixed. The jury in
the trial court found that the plaintiff was an intended and permitted user of
the alley, and the town had an actual and constructive notice of the crack
where Beverly fell. Therefore the judgment was entered in favor of the
plaintiff. Town of Cicero appealed. The issue on the appeal was whether
Beverly was an intended and permitted user of the alley, which would
constitute defendant's liability for plaintiff's injuries. The Local Governmental
Employees Tort Immunity Act 745 ILCS 10/3-102(a) provides: " A local
public entity has the duty to exercise ordinary care of people whom the
entity intended and permitted to use the property in a manner in which and
at such times as 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." The fact that Beverly had a
permission to walk in the alley near her home is undisputed. Cicero contends
that it intended the part of this alley for vehicles, not people. In Khalil v. City
of Chicago 283 Ill.App.3d 163, 218 Ill.Dec663, the court decided that "an
alley is a roadway designed for vehicular traffic, and the duty imposed upon
a municipality under section 3-102(a) is the same as that imposed for a
street…therefore alleys, like streets are intended for use by vehicles, not
pedestrians". The appellate court in the present case admits this case
controls Beverly v. Town of Cicero. The appellate court reversed and
remanded the trial court order entering judgment in plaintiff's favor. To
additionally distinguish the Khalil decision, the appellate court cites Kavales
v. City of Berwyn, 305 Ill.App.3d 536, 238 Ill.Dec 738. In this case plaintiff
slipped and fell in the alley while crossing an alley from one sidewalk to
another. The appellate court held that because the plaintiff was in the
sidewalk area (the word defined in the statute are "crosswalk" or "alley"),
she was an "intended user of the area where a sidewalk intersects an alley".
Here the plaintiff won the case because, while building the sidewalk with an
alley intersection, the City obviously intended pedestrians to use the part of
an alley. Because there is no evidence that Beverly was using her alley as a
crosswalk between sidewalks, the Kaveles case does not particularly apply.
APPLICATION:
The facts in our case and in Thomas are significantly different. However, the
factual difference does not bar us from effectively using court opinion in this
case.
We need to show that City of Chicago intended the part of an alley,
where Betty parked her car, to use while walking back and fort to the car.
Our client parked her car next to the fence behind the NBC. There is a sign
that limits the time of parking along the alley. Would the City install sign
without an intention for people to park? Obviously not. Is it possible for a
car user to leave the legally parked car without using the alley? No. It
makes the City liable for any injuries sustained in the alley by the parking
space users, who try to get to their cars. In Thomas the plaintiff lost her
case, because of lack of the evidence that she was an intended use of the
alley. As to the second question, if the answer would be different, granted
that Betty was walking east on the south sidewalk on Aisley and was inured
while crossing the alley, the answer is no. The City would also be liable, but
for different reasons. While building the street and sidewalks with an alley
intersection, the City intended the pedestrians to cross the alley in order to
reach the next part of the sidewalk. There would be no necessity to prove
that Betty was walking to her legally parked vehicle, the City of Chicago
would be liable for any injuries. The answer to this question is in abovementioned case Kavales v. City of Berwyn, that I have already discussed.
CONCLUSION:
We can use the Thomas v. Town of Cicero and Kavales v. City of Berwyn
while preparing complaint for our client's case. The primary statutory source
of our case should be Tort Immunity Act 745 ILCS 10/3-102(a).
I have checked this case through the West Keycites (see attachment). As
the today's date, it presents valid Illinois law.