                                    2014 IL App (1st) 122769

                                                                             SECOND DIVISION
                                                                                  May 13, 2014


No. 1-12-2769

RANDALL SWAIN,                                        )                      Appeal from the
                                                      )                      Circuit Court of
       Plaintiff-Appellant,                           )                      Cook County.
                                                      )
v.                                                    )                      No. 10 L 1434
                                                      )
THE CITY OF CHICAGO,                                  )                      Honorable
                                                      )                      Richard J. Elrod,
       Defendant-Appellee.                            )                      Judge Presiding.

       JUSTICE LIU delivered the judgment of the court, with opinion.
       Justices Simon and Pierce concurred in the judgment and opinion.

                                            OPINION

¶1     Plaintiff, Randall Swain, filed a negligence action against the City of Chicago (the City)

to recover for injuries that he sustained after stepping into a pothole while crossing a city street.

The City moved for summary judgment, and the circuit court denied the motion on the ground

that there was a genuine issue of material fact as to whether the pothole gave rise to a duty owed

by the City. The case was subsequently reassigned to a different judge and set for trial. During a

pretrial conference, the City made an oral "motion for a directed finding." The court granted this

motion and found, as a matter of law, that the City did not owe a duty to plaintiff because the

pothole was located outside of the crosswalk that plaintiff was using at the time of the incident.

Plaintiff now contends that: (1) the circuit court was prohibited from entering a directed finding

under the law of the case doctrine; and (2) the court erred in finding that the City did not owe

him a duty as a matter of law. For the following reasons, we affirm.
1-12-2769


¶2                                    BACKGROUND

¶3     The facts of this case are not in dispute. On April 3, 2009, plaintiff was attending a

conference in Chicago. About 11:50 a.m., he left the Embassy Suites hotel at 620 State Street

and walked southbound to catch a train to the Palmer House. As he was walking through the

intersection at Ohio Street, he stepped on the edge of a pothole with his right foot and heard his

foot break with a snap. Plaintiff testified during his deposition that he was walking within the

crosswalk at the time of the injury, but also acknowledged that the pothole was about five inches

outside of the crosswalk. The photographs of the pothole in question confirm that the pothole, in

its entirety, was located outside of the crosswalk.

¶4     On August 30, 2010, the City filed a motion for summary judgment, asserting that it

owed no duty to plaintiff because he was not an intended and permitted user of the area where

the pothole was located, i.e., the area outside of the crosswalk. On December 3, 2010, the circuit

court denied the City's motion on the ground that there was a "genuine issue of material fact as to

whether the pothole, a part of which could be considered within the crosswalk, giving [sic] rise to

a duty on the part of the City." (Emphasis in original.) According to the court's order, it was

plaintiff's contention that "the pothole was just an inch outside the crosswalk and his foot caught

it as he walked near the edge." The court explained that while plaintiff had testified that he "was

walking within the crosswalk and stepped on the edge of the pothole" at the time of the incident,

he had also testified that "while walking within the crosswalk, his foot stepped outside the

crosswalk and encountered the edge of the pothole." (Emphases in original.)

¶5     Following the denial of the City's motion, this case was reassigned to a new judge and set

for trial. At the pretrial conference hearing on August 27, 2012, the court acknowledged the

December 3, 2010 order denying summary judgment. The court then sought the parties' input on



                                                  2
1-12-2769


how the jury should be instructed with respect to the City's duty. The City argued that there was

"no genuine issue of material fact" and that "[t]he determination of duty is a question of law." It

then made an "oral motion for a directed finding," and the court granted the motion and entered

judgment for the City. The court found that "the pothole was approximately 6 inches outside of

the crosswalk and that the City owes no duty to Plaintiff even though Plaintiff was an intended

and permitted user inside the crosswalk for defects that are outside of the crosswalk." The court

held that the City was immune from liability for defects outside of the crosswalk, as a matter of

law, pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (745

ILCS 10/3-102 (West 2012)). Plaintiff timely appealed pursuant to Illinois Supreme Court Rule

303 (eff. May 30, 2008).

¶6                                      ANALYSIS

¶7     Before addressing plaintiff's contentions, the parties appear to agree that the circuit court

erroneously characterized the City's motion as a "motion for a directed finding," when it was, in

fact, more akin to a motion to reconsider the court's previous denial of summary judgment. It is

well settled that "[a] motion is defined by its substance rather than its heading." Langone v.

Schad, Diamond & Shedden, P.C., 406 Ill. App. 3d 820, 829 (2010). Here, in arguing before the

court, the City used summary judgment language, stating that there was no "genuine issue of

material fact" in this case and that the issue of whether it owed a duty to plaintiff was "a question

of law." See 735 ILCS 5/2-1005(c) (West 2012). The City also relied exclusively on the

pleadings, depositions, and admissions on file, i.e., the evidence considered on a motion for

summary judgment, since there had been no trial proceedings. Id. A motion for a directed

finding, by contrast, is only properly brought during a trial "at the close of plaintiff's case" (735

ILCS 5/2-1110 (West 2012)), a point which was never reached in the present case. Under the



                                                 3
1-12-2769


circumstances, we agree that the language used by the City and the procedural posture of this

case all support the conclusion that the City's motion was a motion to reconsider the denial of

summary judgment rather than a motion for a directed finding. We therefore consider the City's

motion as such as we turn to plaintiff's specific contentions.

¶8             A. The Court Was Not Barred From Reconsidering Its Prior Ruling

¶9     Plaintiff contends that, under the law of the case doctrine, the circuit court was prohibited

from reconsidering its order denying the City's motion for summary judgment. "Generally, the

law of the case doctrine bars relitigation of an issue previously decided in the same case."

Krautsack v. Anderson, 223 Ill. 2d 541, 552 (2006). That said, "[a] trial court order becomes the

'law of the case' only if there is a final and appealable order." McDonald's Corp. v. Vittorio Ricci

Chicago, Inc., 125 Ill. App. 3d 1083, 1087 (1984).

¶ 10   Here, the circuit court's order denying summary judgment to the City was interlocutory in

nature (Clark v. Children's Memorial Hospital, 2011 IL 108656, ¶ 119) and thus never the law of

the case (McDonald's Corp., 125 Ill. App. 3d at 1087). Furthermore, contrary to plaintiff's claim,

a judge acts within the bounds of his or her authority when reconsidering a prior ruling in the

same case by a different judge, so long as the record lacks evidence of bad faith or "judge

shopping" by the movant seeking reconsideration. See Rowe v. State Bank of Lombard, 125 Ill.

2d 203, 214 (1988) (finding that judge had authority, after being assigned a case in the ordinary

course of judicial reassignment, to reconsider previous judge's denial of summary judgment).

Plaintiff has not asserted any basis for this court to find that the City's request to reconsider the

denial of summary judgment was made in bad faith, and the record does not show that this case

was reassigned as a result of any efforts by the City to obtain a substitution of judge. Under the




                                                 4
1-12-2769


circumstances, we find nothing that would have precluded the circuit court from reconsidering

the previous denial of summary judgment. We therefore reject plaintiff's claim.

¶ 11            B. Summary Judgment is Proper Where No Duty of Care Exists

¶ 12    Plaintiff also contends that the circuit court erred in granting summary judgment to the

City. He claims that because he was walking within the crosswalk at the time of his injury, he

was an intended and permitted user of the street and, therefore, he was owed a duty of care by

the City.

¶ 13    "Summary judgment is appropriate when 'the pleadings, depositions and admissions on

file, together with the affidavits, if any, show that there is no issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.' " Tunca v. Painter, 2012 IL App

(1st) 110930, ¶ 13 (quoting 735 ILCS 5/2-1005(c) (West 2010)). We review de novo the trial

court's ruling on a motion for summary judgment. Id.

¶ 14    "[T]o recover in an action for negligence, a plaintiff must establish the existence of a duty

owed by the defendant to the plaintiff, a breach of that duty, and an injury to the plaintiff

proximately caused by the breach." Sameer v. Butt, 343 Ill. App. 3d 78, 85 (2003) (citing Ward

v. K mart Corp., 136 Ill. 2d 132, 140 (1990)). "The question of the existence of a duty is a

question of law, and in determining whether a duty exists, the trial court considers whether a

relationship existed between the parties that imposed a legal obligation upon one party for the

benefit of the other party." Id. (citing Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 215

(1988)).

¶ 15    The dispositive issue in this appeal is whether the City owed a duty to plaintiff pursuant

to section 3-102 of the Local Governmental and Governmental Employees Tort Immunity Act

(the Tort Immunity Act) (745 ILCS 10/3-102 (West 2012)). That section provides:



                                                   5
1-12-2769


               "Except 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." 745 ILCS 10/3-

               102(a) (West 2012).

Our supreme court has noted that "[s]ection 3-102(a) of the Act only imposes a duty of ordinary

care on municipalities to maintain property for uses that are both permitted and intended."

(Emphases in original.)     Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 160 (1995).

"Whether a particular use of property was permitted and intended is determined by looking to the

nature of the property itself." Id. at 162-63.

¶ 16   It is well-settled law that a municipality owes no duty to a pedestrian who crosses a

public street outside of the crosswalk. See Harden v. City of Chicago, 2013 IL App (1st)

120846, ¶ 20 (citing cases in which the Illinois courts found no duty of care owed to pedestrians

who attempted to cross the road without using the crosswalk).

¶ 17   In Vaughn, the plaintiff brought a negligence suit against the City of West Frankfort after

stepping into a hole while crossing the street midblock. Vaughn, 166 Ill. 2d at 157. There, the

supreme court recognized that "[t]he general rule *** in Illinois with regard to the duty of a



                                                  6
1-12-2769


municipality to maintain its streets in a reasonably safe condition is that, since pedestrians are not

intended users of streets, a municipality does not owe a duty of reasonable care to pedestrians

who attempt to cross a street outside the crosswalks." Id. at 158. The supreme court additionally

explained:

               "[T]he question of whether a municipality owes a duty does not

               depend on whether the plaintiff-pedestrian was struck by a moving

               vehicle or tripped over a pothole, but rather depends on whether

               the municipality intended that the plaintiff-pedestrian walk in that

               part of the street where the injury occurred and permitted the

               plaintiff-pedestrian to do so. [Citation.] We note that, except for

               those cases in which street defects were in the area immediately

               around a parked vehicle, Illinois courts have refused to impose a

               duty on municipalities for injuries to pedestrians which were

               caused by those defects. [Citations.]" (Emphasis added.) Id. at

               163.

Ultimately, the supreme court held in Vaughn that "local municipalities owe no duty to maintain

streets and roadways in a reasonably safe condition for pedestrians who choose to cross the street

outside the protection of the crosswalks." Id. at 164.

¶ 18   In Wojdyla v. City of Park Ridge, the plaintiff brought a negligence suit against the City

of Park Ridge after her husband was struck and killed by an automobile while crossing a

highway where there was no crosswalk. Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 419-20

(1992). The supreme court held that the decedent was not an intended and permitted user of the

highway, stating:



                                                  7
1-12-2769


                      "To determine the intended use of the property involved

               here, we need look no further than the property itself. The roads

               are paved, marked and regulated by traffic signs and signals for the

               benefit of automobiles. Parking lanes are set out according to

               painted blocks on the pavement, signs or meters on the sidewalk or

               parkway, or painted markings on the curb. Pedestrian walkways

               are designated by painted crosswalks by design, and by

               intersections by custom. These are the indications of intended use.

               That pedestrians may be permitted to cross the street mid-block

               does not mean they should have unfettered access to cross the

               street at whatever time and under whatever circumstances they

               should so choose. Marked or unmarked crosswalks are intended

               for   the   protection   of   pedestrians   crossing   streets,   and

               municipalities are charged with liability for those areas. Those

               areas do not, however, include a highway in midblock." Id. at 426.

¶ 19   Recently, in Harden v. City of Chicago, 2013 IL App (1st) 120846, this court applied

section 3-102 in circumstances similar to those present here. In Harden, the plaintiff was

crossing Adams Street when her foot became caught in a large metal plate that was " 'between

the stop line and the two crosswalk lines.' " Id. ¶¶ 5-6. The plaintiff heard a crack and was later

treated for a broken tibia, fibula, and ankle. Id. ¶¶ 6-7. The plaintiff testified during her

deposition that it had been snowing at the time of her injury and that there was less than half an

inch of snow on the ground. Id. ¶ 4. She also filed an affidavit stating that she could not see the

crosswalk lines because of the snow and pedestrians. Id. ¶ 10. Another witness who had been



                                                8
1-12-2769


walking with her stated in his affidavit that he was unable to see the lines of the crosswalk, as "it

was snowing heavily and the sidewalks, streets and crosswalks were covered with snow" and

they " 'were also surrounded by other pedestrians in front, behind and on each side.' " Id. ¶ 11.

The plaintiff testified that she had crossed the street " 'somewhere before the stop line where the

crosswalk lines are' " and that the metal plate was outside of the crosswalk. Id. ¶ 12. The

photograph in the record revealed that " 'the metal plate which plaintiff alleges caused her fall

was not within the marked crosswalk.' " Id. The circuit court granted summary judgment in

favor of the City, concluding that " 'plaintiff's chosen path to cross the street in question was not

in the City's intended and permitted use of the street' under section 3-102." Id.

¶ 20   On appeal, this court affirmed the circuit court's determination that, as a matter of law,

the City did not owe plaintiff a duty. We found that the City had a marked crosswalk which was

intended for pedestrian use. Id. ¶ 37. The plaintiff, however, argued that the City owed

pedestrians outside of the crosswalk a duty during inclement weather, because "it was reasonably

foreseeable that pedestrians would walk outside of the marked crosswalk when snow rendered

the crosswalk lines invisible." Id. ¶ 31. This court disagreed, finding:

               "Here, the City did not intend for pedestrians to cross outside of a

               marked crosswalk and the street, even that portion close to the

               crosswalk, was not intended for pedestrians. While it may be

               foreseeable that pedestrians would cross the street outside of the

               crosswalk, the supreme court has made it clear that foreseeability

               does not change the intended use." (Emphasis added.) Id. ¶ 30.

¶ 21   In rejecting the plaintiff's argument, we also noted that "it is the intent of the municipality

that determines the intended use of the property" and that the intended uses of the street and



                                                 9
1-12-2769


crosswalk were "not altered by the presence of snow." Id. ¶ 37. We found no legal authority for

the proposition that the duty to pedestrians changes even if "the weather diminishes visibility or

renders the crosswalk invisible." Id. We concluded that the plaintiff was injured while crossing

outside of a marked crosswalk and the evidence clearly established that the metal plate was

located outside of the crosswalk.

¶ 22   The clear import of Harden, Wojdyla, and Vaughn is that a municipality owes no duty of

care to pedestrians who cross the street outside of a crosswalk.

¶ 23   Here, plaintiff attempts to distinguish the instant case on the ground that he was partially

within the crosswalk at the time of his injury. He specifically argues that it is his location when

he is injured that controls the issue of duty and that it is irrelevant that the pothole that caused his

injury was entirely outside of the crosswalk.

¶ 24   Contrary to plaintiff's claim, the supreme court has expressly held that it is the nature of

the property where the plaintiff is injured that determines whether a duty is owed under section

3-102. Vaughn, 166 Ill. 2d at 160, 162-63. It is therefore of no consequence that plaintiff was

partially within the crosswalk at the time of his injury because it is undisputed that he was

injured while stepping into a pothole that was located outside of the crosswalk. Since plaintiff

was injured stepping into an area that the City clearly had not intended for pedestrian use, the

City did not owe plaintiff any duty pursuant to section 3-102 of the Tort Immunity Act. 745

ILCS 10/3-102(a) (West 2012); see also Vaughn, 166 Ill. 2d at 164; Wojdyla, 148 Ill. 2d at 426;

Harden, 2013 IL App (1st) 120846, ¶ 37. The circuit court's order granting the City summary

judgment was therefore entirely proper.

¶ 25   Plaintiff asks us to make an exception to the general rule that a pedestrian is not an

intended and permitted user of the area of the street outside of a crosswalk, citing Curatola v.



                                                  10
1-12-2769


Village of Niles, 154 Ill. 2d 201 (1993), and Di Domenico v. Village of Romeoville, 171 Ill. App.

3d 293 (1988). In Curatola and Di Domenico, the supreme court and this court created the

exception that a municipality has a duty to maintain the street immediately around a legally

parked vehicle for individuals to enter and exit the vehicle. Curatola, 154 Ill. 2d at 213, 216;

Di Domenico, 171 Ill. App. 3d at 295. Curatola and Di Domenico do not persuade us that an

exception is warranted in a case such as this. We follow the reasoning set forth in Harden,

which addressed a similar argument made by the plaintiff in that case:

               "[T]he limited exception outlined in Curatola does not support

               plaintiff's position because the legally intended path for pedestrians

               is the crosswalk. The Curatola exception imposes a duty to a

               municipality for parking lanes and not the entire street, similarly a

               duty exists to maintain crosswalks for pedestrian use, not the area

               outside of the crosswalk." (Emphasis added). Harden, 2013 IL

               App (1st) 120846, ¶ 34.

¶ 26   Plaintiff claims that an exception should be made where a person is walking within a

designated crosswalk area and is injured by a pothole located outside of the crosswalk lines. He

claims that in such a case the person is "where he is intended to be" and therefore should be

considered a "permitted and intended user and owed a duty." The inconsistency in plaintiff's

argument is that a pedestrian who is using the crosswalk is not, in fact, "where he is intended to

be" when he steps outside of the crosswalk. When he steps onto the street area outside of the

lines of the crosswalk, he removes himself from the property that the City provides specifically

for pedestrian traffic and, instead, uses the property intended solely for vehicular traffic. The

fact that plaintiff was using the crosswalk part of the time while crossing the street, absent any



                                                11
1-12-2769


indicia of a defect within the crosswalk that would have caused him to step outside of it, does not

establish a basis for an exception to the rule. If we were to adopt plaintiff's proposition, we

would be opening the door to exceptions for innumerable circumstances that are unrelated to the

municipality's permitted and intended use of the street.          We find plaintiff's argument

unpersuasive and therefore decline to create an exception that would extend the City's duty of

care to pedestrians who walk outside of a crosswalk.

¶ 27   For the reasons stated, we affirm the order of the circuit court of Cook County granting

summary judgment to the City.

¶ 28   Affirmed.




                                                12
