                                                                       FILED
                              2015 IL App (4th) 140043                 April 27, 2015
                                                                       Carla Bender
                     NOS. 4-14-0043, 4-14-0417, 4-14-0418 cons.     th
                                                                   4 District Appellate
                                                                         Court, IL
                           IN THE APPELLATE COURT

                                   OF ILLINOIS

                                FOURTH DISTRICT


SHANNON PETERS,                                  )       Appeal from
               Plaintiff-Appellant,              )       Circuit Court of
               v. (No. 4-14-0043)                )       Adams County
JOYCE RIGGS; THE CITY OF QUINCY, a Municipal )           No. 13L17
Corporation; and AMEREN ILLINOIS COMPANY,        )
an Illinois Corporation,                         )
               Defendants-Appellees,             )
               and                               )
JOYCE RIGGS,                                     )
               Counterplaintiff,                 )
               v.                                )
THE CITY OF QUINCY, a Municipal Corporation; and )
AMEREN ILLINOIS COMPANY, an Illinois             )
Corporation,                                     )
               Counterdefendants.                )
______________________________________________ )
SHANNON PETERS,                                  )
               Plaintiff,                        )
               v.                                )
JOYCE RIGGS; THE CITY OF QUINCY, a Municipal )
Corporation; and AMEREN ILLINOIS COMPANY,        )
an Illinois Corporation,                         )
               Defendants,                       )
               and                               )
JOYCE RIGGS,                                     )
               Counterplaintiff-Appellant,       )
               v. (No. 4-14-0417)                )
THE CITY OF QUINCY, a Municipal Corporation; and )
AMEREN ILLINOIS COMPANY, an Illinois             )
Corporation,                                     )
               Counterdefendants-Appellees.      )
______________________________________________ )
SHANNON PETERS,                                  )
               Plaintiff-Appellant,              )
               v. (No. 4-14-0418)                )
JOYCE RIGGS; THE CITY OF QUINCY, a Municipal )
Corporation; and AMEREN ILLINOIS COMPANY,        )
an Illinois Corporation,                         )
               Defendants-Appellees,             )
               and                               )
JOYCE RIGGS,                                     )
               Counterplaintiff,                 )
               v.                                )
THE CITY OF QUINCY, a Municipal Corporation; and )
AMEREN ILLINOS COMPANY, an Illinois              )   Honorable
Corporation,                                     )   Thomas J. Ortbal,
               Counterdefendants.                )   Judge Presiding.
______________________________________________________________________________

               JUSTICE HARRIS delivered the judgment of the court, with opinion.
               Justices Steigmann and Appleton concurred in the judgment and opinion.

                                            OPINION

¶1             In January 2013, plaintiff, Shannon Peters, was struck by a vehicle as she crossed

a city street in Quincy, Illinois. She filed an action against defendants, Joyce Riggs, the driver of

the vehicle that struck her; the City of Quincy, a municipal corporation (City); and Ameren Illi-

nois Company, an Illinois corporation (Ameren), seeking to recover damages for the injuries she

sustained during the incident. Peters' claims against the City and Ameren were based on allega-

tions that nonfunctioning streetlights in the location of the accident created an unreasonably un-

safe condition. Riggs filed a counterclaim for contribution against the City and Ameren. Both

the City and Ameren filed motions to dismiss all counts against them, which the trial court ulti-

mately granted. Peters and Riggs both appealed and their appeals have been consolidated for

review. We affirm.

¶2                                      I. BACKGROUND


                                                -2-
¶3             On January 7, 2013, at approximately 6:28 p.m., Peters was struck by Riggs' ve-

hicle as she attempted to walk in a northerly direction across Chestnut Street "between 18th and

20th Streets" in Quincy, Illinois. On June 7, 2013, she filed an amended complaint against de-

fendants. She brought one count of negligence against each defendant and an additional count

against the City alleging willful and wanton conduct.

¶4             Peters alleged Chestnut Street was a public roadway in Quincy that ran east and

west. It intersected with 18th and 20th Streets, both of which ran north and south. Peters alleged

she was struck by Riggs' vehicle while crossing Chestnut Street "between 18th and 20th Streets."

She further alleged that she was a Quincy University student and that residence halls were locat-

ed on a portion of the south side of Chestnut Street between 18th and 20th Streets. A student

parking lot was located on the north side of Chestnut Street across from the residence halls. Pe-

ters asserted the area surrounding the residence halls "was an area of high pedestrian traffic, in-

cluding students from Quincy University."

¶5             Additionally, Peters alleged the City "owned and maintained" three or more

streetlights that were located on the south side of Chestnut Street between 18th and 20th Streets

and that Ameren had entered into a contract with the City to "repair and maintain street lights

and other equipment." According to Peters, on the date she was struck by Riggs, "one or more of

the street lights on the south side of Chestnut Street between 18th and 20th Streets *** were not

functioning." Her complaint included allegations that, in July 2010, a City employee sent an

e-mail to an Ameren employee asking that it repair two streetlights at the location at issue. Pe-

ters alleged the nonfunctioning streetlights created an unreasonably unsafe condition on the date

she was injured.


                                               -3-
¶6             With respect to her negligence count against the City (count II of her amended

complaint), Peters alleged the City owed a duty "to exercise reasonable care in the ownership

and maintenance of the three or more street lights on the south side of Chestnut Street between

18th and 20th Streets." She asserted the City breached its duty by committing various negligent

acts or omissions, including failing to (1) maintain its streetlights in a reasonably safe condition,

(2) inspect the streetlights to see if they were functioning, (3) act with reasonable care to fix the

streetlights, and (4) follow up with Ameren to ensure the streetlights were fixed. Peters alleged

she sustained injuries as a direct and proximate result of the City's negligent acts or omissions.

¶7             Peters also alleged willful and wanton conduct on behalf of the City (count III of

Peters' amended complaint). She asserted the City owed a duty to refrain from willful and wan-

ton conduct in the ownership and maintenance of the streetlights at issue but breached that duty

by exhibiting a conscious disregard or an utter indifference to the safety of others. Specifically,

Peters alleged the City willfully failed to (1) maintain its streetlights in a reasonably safe condi-

tion, (2) inspect the streetlights to see if they were functioning, (3) act with reasonable care to fix

the streetlights at issue, and (4) follow up with Ameren to ensure the streetlights were fixed.

Again, she asserted the injuries she sustained were a direct and proximate result of the City's

willful and wanton acts or omissions.

¶8             With respect to her negligence claim against Ameren, Peters alleged Ameren

"owed a duty to exercise reasonable care in executing its contractual obligations, including its

duty to exercise reasonable care in the repair and maintenance of the three street lights on the

south side of Chestnut Street between 18th and 20th Streets." She asserted Ameren breached its

duty by committing various negligent acts and/or omissions, including (1) failing to repair the


                                                 -4-
streetlights at issue in a timely manner; (2) failing to inspect the streetlights at issue to make sure

they were functioning; (3) failing to perform contractual obligations under its contract with the

City with respect to fixing, maintaining, and inspecting the streetlights at issue; (4) failing to ex-

ercise reasonable care in the repair and maintenance of the streetlights at issue; and (5) carelessly

permitting the streetlights at issue "to remain in a non-working order when it knew or *** should

have known that the resulting darkness created an unreasonably safe [sic] condition for pedestri-

ans in the area." Peters also alleged she sustained injuries that were a direct and proximate result

of Ameren's negligent acts or omissions.

¶9             On June 11, 2013, Riggs filed an answer and affirmative defense to Peters'

amended complaint along with a countercomplaint for contribution against the City and Ameren.

Riggs' claims for contribution—alleging negligence and willful and wanton conduct against the

City and negligence against Ameren—essentially mirrored Peters' allegations against those same

defendants.

¶ 10           On July 18, 2013, the City filed a combined motion to dismiss the counts against

it in Peters' amended complaint pursuant to section 2-619.1 of the Code of Civil Procedure

(Code) (735 ILCS 5/2-619.1 (West 2012)), as well as a memorandum in support of its motion.

First, it alleged both count II (alleging negligence) and count III (alleging willful and wanton

conduct) of Peters' amended complaint should be dismissed pursuant to section 2-615 of the

Code (735 ILCS 5/2-615 (West 2012)). The City asserted both counts failed to state a cause of

action because Peters failed to allege facts showing that the City owed her a duty as an intended

user of Chestnut Street. It cited section 3-102 of the Local Governmental and Governmental

Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-102 (West 2012)), which


                                                 -5-
provides as follows:

               "[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."

The City cited case law for the proposition that pedestrians walking mid-block and outside of an

established crosswalk are generally not intended users of a street for whom a duty is owed.

¶ 11           The City also alleged count III should be dismissed pursuant to section 2-615 on

the basis that Peters merely labeled conduct willful and wanton and failed to allege sufficient,

well-pleaded facts to support that allegation. Specifically, it argued Peters failed to allege any

facts showing the City "deliberately inflicted a highly unreasonable risk of harm to [Peters] in

conscious disregard of it."

¶ 12           Second, the City alleged both counts should be dismissed pursuant to section 2-

619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2012)) because affirmative matter defeated

Peters' claims. Specifically, it argued that, under section 3-102 of the Tort Immunity Act, it did

not owe Peters a duty as an intended user of Chestnut Street. The City maintained Peters' allega-

tions established that she did not cross Chestnut Street at its intersection with either 18th or 20th


                                                -6-
Streets. Further, it asked the trial court to take judicial notice of the fact that no crosswalks were

located on Chestnut Street between 18th and 20th Streets. The City attached the affidavit of

Quincy police officer Christopher Mueller to its memorandum. Mueller averred he was the first

police officer on the scene following the accident. He observed fire and ambulance personnel

"mid-block on Chestnut Street between 18th and 20th Streets" and saw Peters, who was "located

in the eastbound lane of Chestnut Street, approximately mid-block between 18th and 20th

Streets." Mueller and another officer found and marked pools of blood. They also measured the

scene. Mueller set forth his recorded measurements, noting the length of Chestnut Street be-

tween 18th and 20th Streets was 733 feet and the marked pools of blood measured 333, 335, and

344 feet from the east curb of 18th Street.

¶ 13           Also on July 18, 2013, the City filed a combined motion to dismiss the counts

against it in Riggs' counterclaim for contribution. It adopted and incorporated by reference the

facts and analysis set forth in its motion to dismiss Peters' amended complaint and supporting

memorandum. The City argued it was not liable for contribution to Riggs if its motion to dismiss

Peters' claims was granted and it was found not liable for her injuries.

¶ 14           On July 29, 2013, Ameren filed motions to dismiss the counts against it in both

Peters' amended complaint (count IV) and Riggs' counterclaim for contribution (count III) pursu-

ant to section 2-615 of the Code. With respect to Peters' amended complaint, Ameren argued

Peters failed to "plead sufficient facts to establish a recognized duty of care by Ameren, a public

utility, to a pedestrian crossing the street outside of a marked crosswalk." Additionally it argued

that "[t]he alleged lack of street lighting at the time of the accident did nothing more than restore

the location at which [Peters] chose to cross the street to its naturally occurring condition of


                                                -7-
darkness which by its very nature is an open and obvious condition." Regarding Riggs' counter-

claim for contribution, Ameren noted Riggs' allegations paralleled those made by Peters. It ar-

gued Riggs' counterclaim for contribution "should be dismissed for the same reasons as set forth

in" its motion to dismiss Peters' amended complaint.

¶ 15           Also on July 29, 2013, Ameren filed a memorandum of law in support of its mo-

tion to dismiss Peters' amended complaint. It argued Peters failed to state a cause of action for

negligence against it because she "failed to plead any facts establishing a duty owed to her by

Ameren." Like the City, Ameren cited case law for the proposition that pedestrians are not in-

tended users of streets when they are outside of a crosswalk. Further, it argued that the scope of

its duty to Peters could be no greater than the scope of the duty owed by the City. Ameren also

relied on cases from other jurisdictions for the proposition that utilities are not liable to pedestri-

ans for injuries caused by nonfunctioning streetlights. Additionally, it argued it owed no duty to

Peters because the darkness which resulted from the nonfunctioning street lights was an open and

obvious condition.

¶ 16            On December 4, 2013, Peters filed responses to both the City's and Ameren's mo-

tions to dismiss. She attached various exhibits to her response to the City's motion, including

photographs of the portion of Chestnut Street at issue. Peters provided a detailed description of

the area at issue and asserted there were 12 pedestrian sidewalks on Chestnut Street between

18th Street and 20th Street that connected with Chestnut Street and which invited and encour-

aged pedestrians to enter the roadway. Six of those sidewalks were located on each side of the

street. Peters noted three residence halls were located on the southeastern side of Chestnut Street

between 18th Street and 20th Streets. Each residence hall had a sidewalk that extended from the


                                                 -8-
front of the building to the southern curb of Chestnut Street. One residence hall had two such

sidewalks. The remaining eight sidewalks led from private residences to either the northern or

southern curbs of Chestnut Street. Peters further alleged that, although curb parking was gener-

ally allowed on both sides of Chestnut Street, a portion of the south side of the street—from the

corner of Chestnut Street and 20th Street and extending west in front of two of the three resi-

dence halls—was a no-parking zone. Additionally, a student parking lot was located on the

north side of Chestnut Street directly across from one of the residence halls. Peters acknowl-

edged there were no painted crosswalk markings on the portion of Chestnut Street at issue.

¶ 17           Peters asserted there were four overhead streetlights on the south side of Chestnut

Street between 18th Street and 20th Street, which were owned, operated, and maintained by

Ameren pursuant to a franchise agreement with the City. On the date Peters was struck by

Riggs' vehicle, a streetlight on the south side of Chestnut Street in front of a residence hall was

not functioning.

¶ 18           Peters argued she was an intended user of Chestnut Street based upon "the [12]

pedestrian sidewalks that invited pedestrians into Chestnut Street between 18th Street and 20th

Street." She maintained those 12 sidewalks were physical indications of the City's intent that

pedestrians use Chestnut Street. Peters further argued she presented sufficient allegations to es-

tablish that the City's conduct was willful and wanton. In particular, she maintained she alleged

sufficient facts to prove the City exhibited a conscious disregard for her safety by failing to

maintain and fix the nonfunctioning overhead streetlight on Chestnut Street when it knew or

should have known that students and other pedestrians commonly crossed Chestnut Street out-

side of a crosswalk.


                                               -9-
¶ 19           In connection with her response to Ameren's motion to dismiss, Peters argued

Ameren's duty did not derive from the duty owed by the City. She asserted Ameren was an in-

dependent contractor of the City and was excluded from the protections of the Tort Immunity

Act. Instead, Peters argued Ameren's duty arose "from a contract between [the City] and

Ameren wherein Ameren owned, operated[,] and maintained street lights in Quincy, including

the street light at issue in this case" and was governed by common law. Unlike in her amended

complaint (wherein she alleged the City owned the streetlights), she asserted the streetlights were

not owned by the City "but rather leased to the [C]ity by Ameren." Peters alternatively argued

that, in the event Ameren's duty was derived from the City's duty, "the [12] pedestrian sidewalks

that connect with Chestnut Street between 18th and *** 20th Street establish a clear intent of [the

City] to have pedestrians in the street, thereby making pedestrians intended and permitted users

of Chestnut Street." Peters asked the trial court to deny Ameren's motion to dismiss or, alterna-

tively, grant the motion without prejudice and give her leave to file an amended complaint.

¶ 20           Riggs filed a response to the City's and Ameren's motions to dismiss, adopting

Peters' arguments. On December 20, 2013, following additional replies by both the City and

Ameren, the trial court conducted a hearing on the matter. On December 27, 2013, it entered a

written order. The court first set forth various assertions from the parties' filings that it accepted

as true, including that Peters had been crossing Chestnut Street midway between 18th and 20th

Streets. It also found that, in addition to sidewalks which ran parallel to Chestnut Street between

18th and 20th Streets, there were "various paved surfaces which [were] connected to the parallel

sidewalk" and ran "perpendicular to the street curb." The court noted the portion of the curb that

was connected to each perpendicular sidewalk had "no curb cuts or sloped surfaces connecting


                                                - 10 -
the perpendicular, paved walkway to the surface of the adjacent street." Additionally, it found as

follows:

               "There are no painted or other markings on the surface of Chestnut

               Street between 18th and 20th Streets and no signs or other physical

               manifestations designating or delineating a pedestrian cross[]walk

               at any of the perpendicular paved walkways connected to the street

               curb or any other locations on Chestnut Street between the inter-

               secting 18th and 20th Streets."

¶ 21           Based upon its factual findings, the trial court determined as a matter of law that

Peters was not an intended pedestrian user of Chestnut Street at the location of the accident. As

a result, the court granted with prejudice both the City's combined motion to dismiss counts II

and III of Peters' amended complaint and counts I and II of Riggs' counterclaim for contribution.

It also denied both Peters and Riggs the opportunity to file amended pleadings against the City.

The court reserved ruling on Ameren's motions to dismiss. Finally, it made a finding pursuant to

Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) that there was no just reason to delay the

enforcement or appeal of the court's order as it related to the City.

¶ 22           On December 31, 2013, the trial court entered a second order. Initially, the court

indicated that it had granted the City's combined motions to dismiss Peters' complaint and Riggs'

counterclaim for contribution based upon both section 2-615 and section 2-619(a)(9) of the

Code. Specifically, it stated as follows:

                       "The court has ruled, by separate order, that the Amended

               Complaint fails to state a cause of action against [the City] because


                                                 - 11 -
               it failed to allege that [Peters] was an intended user of the street at

               the point when she was struck by Riggs' vehicle while crossing

               Chestnut Street. The court further granted [the City's] Motion to

               Dismiss the Amended Complaint with prejudice pursuant to

               [s]ection 2-619 of the Code *** on the basis that the undisputed

               facts established, as a matter of law, that [Peters] was not an in-

               tended user of the street where the accident occurred because [the

               City] had not manifested an intent that pedestrians cross the street

               at the location in question."

¶ 23           Next, the trial court addressed the parties' arguments as they related to Ameren.

The court first found it was evident that Peters' amended complaint premised Ameren's liability

"upon Ameren's alleged violation of a claimed contractual duty to [the City] to maintain and re-

pair street[]lights." However, the court stated it agreed with Ameren that "this derivative basis

for Ameren's liability fail[ed] to state a cause of action against Ameren." It found Peters' amend-

ed complaint "otherwise *** lacking in any alleged duty owed by Ameren to [Peters]." The

court noted Peters' contention that Ameren owed a common law duty to Peters that was "inde-

pendent of any derivative claim with" the City but pointed out that her amended complaint failed

to allege any such independent duty. The Court made the same findings with respect to Riggs'

counterclaim, which it noted essentially paralleled Peters' claims against Ameren. Ultimately,

the court granted both of Ameren's motions to dismiss but allowed Peters and Riggs the oppor-

tunity to file amended pleadings.

¶ 24           On January 14, 2014, Peters filed a notice of appeal (docketed by this court as


                                               - 12 -
case No. 4-14-0043). She challenged the trial court's December 27, 2013, order, which granted

the City's combined motion to dismiss counts II and III of her amended complaint.

¶ 25           On January 21, 2014, Peters filed a second amended complaint, alleging negli-

gence against Riggs and both negligence and breach of contract against Ameren. She alleged

Ameren "was in the business of supplying electric, power, and gas utilities to municipalities and

[their] residents" and the City passed ordinances authorizing Ameren and its predecessor to con-

struct, operate, and maintain an electric light, heat, and power system within Quincy. Peters fur-

ther alleged Ameren owned electrical poles with attached lighting apparatuses on the south side

of Chestnut Street between 18th and 20th Streets.

¶ 26           With respect to her negligence claim, Peters asserted that Ameren, as the owner of

those poles and lights, had an obligation and duty to maintain them in a reasonably safe and

workable condition. She alleged that, on or about the date of her January 2013 accident, Ameren

knew or should have known that one or more of the streetlights at issue was not functioning.

Further, she alleged Ameren breached its duty by committing one or more negligent acts or

omissions, including (1) failing to inspect its poles and light apparatuses to make sure they were

functioning, (2) failing to maintain its poles and light apparatuses in a reasonably safe and work-

able condition, (3) failing to repair or fix its poles and light apparatuses when it knew or in the

exercise of reasonable care should have known that the lights were not functioning, and (4) care-

lessly permitting its streetlights to remain in nonworking order when it knew or in the exercise of

reasonable care should have known that the resulting darkness created an unreasonably unsafe

condition for pedestrians in the area. Peters asserted she sustained injuries as a direct and proxi-

mate result of Ameren's negligent acts and omissions.


                                               - 13 -
¶ 27           In connection with her breach of contract claim against Ameren, Peters alleged

that "as a consumer of electrical energy located within Quincy's corporate limits," she was a

third-party beneficiary of the contract between the City and Ameren. Further she asserted

Ameren "had a contractual obligation and duty" to construct, operate, and maintain its electrical

poles and lighting apparatuses in a reasonably safe and workable condition. Peters alleged

Ameren breached its contract by (1) failing to inspect its property to make sure that it was func-

tioning, (2) failing to maintain its property in a reasonably safe and workable condition, (3) fail-

ing to repair and fix its property, and (4) carelessly permitting its streetlights to remain in non-

working order. Again, Peters asserted she sustained injuries as a direct and proximate result of

Ameren's breaches of contract.

¶ 28           On January 22, 2014, Riggs filed an amended countercomplaint against Ameren.

She first brought a claim for contribution, alleging negligence based upon Ameren's ownership

of the street poles and lights and its contract with the City to repair and maintain streetlights and

other equipment. Riggs alleged Ameren owed her "a duty at common law and by virtue of a

voluntary undertaking *** to exercise reasonable care in executing its ownership and contractual

obligations, including its duty to exercise reasonable care in the repair and maintenance of three

streetlights on the south side of Chestnut Street between 18th *** and 20th Streets." She main-

tained Ameren breached its duty by (1) failing to repair the streetlights at issue in a timely man-

ner, (2) failing to inspect the streetlights to make sure they were functioning, (3) failing to per-

form contractual obligations under its contract with the City, (4) failing to exercise reasonable

care in the repair and maintenance of the streetlights, and (5) carelessly permitting the street-

lights to remain in nonworking order. Riggs alleged Ameren's negligent acts or omissions con-


                                               - 14 -
tributed to or proximately caused Peters' injuries.

¶ 29            Riggs also brought a second negligence count against Ameren. She repeated the

same allegations as in her first count but asserted that as a proximate result of Ameren's negli-

gence she "sustained damage to her vehicle and [was] exposed to liability for" injuries and dam-

ages Peters' sustained.

¶ 30            Finally, Riggs brought a third count against Ameren for breach of contract. She

alleged that, as a motorist operating a vehicle on the streets of Quincy at night, she was a direct

and intended third-party beneficiary of the contract between the City and Ameren. Riggs assert-

ed Ameren owed her a duty by virtue of its contractual undertaking to repair and maintain the

City's streetlights in a reasonably safe condition but breached its contract by (1) failing to timely

repair the streetlights, (2) failing to inspect the streetlights, (3) failing to maintain the streetlights,

and (4) carelessly permitting the streetlights to remain nonworking when it knew or should have

known the resulting darkness created an unreasonably unsafe condition for pedestrians. Riggs

alleged she sustained damage to her vehicle and was exposed to liability as a direct and proxi-

mate result of Ameren's breaches of contract.

¶ 31            On February 13, 2014, Ameren filed motions to dismiss the counts against it in

both Peters' second amended complaint and Riggs' amended countercomplaint. Both motions

sought dismissal pursuant to section 2-615. With respect to Peters' second amended complaint,

Ameren argued Peters' negligence count against it should be dismissed with prejudice because,

as a matter of law, it did not owe a duty to Peters. It also asserted Peters failed to state a claim

for breach of contract because Peters was not an intended or direct third-party beneficiary of the

contract permitting Ameren to provide electrical services to the City.


                                                  - 15 -
¶ 32            In seeking dismissal of Riggs' amended countercomplaint, Ameren first argued

that no liability existed based upon Riggs' claim for contribution because it did not owe a duty to

Peters. Second, it asserted Riggs' negligence claim failed to state a cause of action because

Ameren did not owe Riggs a common law duty, the voluntary undertaking theory did not apply,

and the open and obvious doctrine precluded such a claim. Third, Ameren asserted Riggs failed

to state a cause of action for breach of contract because she was not an intended third-party bene-

ficiary of the contract between Ameren and the City.

¶ 33            Riggs additionally filed a motion to reconsider the dismissal of her original con-

tribution claims against the City and sought leave to file a third-party complaint. She argued the

City was "subject to liability in tort at common law, and by virtue of its breach of a voluntary

undertaking, for failing to maintain the street[]lights in the area of the accident." Further, she

maintained that the fact that the City could raise the Tort Immunity Act as an affirmative defense

failed to negate the fact that it was "subject to liability in tort" as set forth in the Joint Tortfeasor

Contribution Act (Contribution Act) (740 ILCS 100/2(a) (West 2012)). Additionally, Riggs

maintained that because she, as a motorist, had been an intended and permitted user of Chestnut

Street, her claim for contribution should not have been barred, regardless of whether Peters had

been an intended user of Chestnut Street.

¶ 34            On March 7, 2014, the trial court conducted a hearing on Riggs' motion to recon-

sider. Following the hearing, the court denied the motion in part, but reserved ruling on the por-

tion of her motion which concerned her desire to bring a direct negligence claim against the City.

On March 19, 2014, Riggs filed a supplemental brief in support of her motion to reconsider.

She also filed a motion to voluntarily dismiss and/or strike any and all claims she made for dam-


                                                 - 16 -
age to her vehicle in both her amended countercomplaint against Ameren and her proposed third-

party complaint against the City. On March 27, 2014, following additional responsive pleadings

by the parties, the court conducted a hearing to address pending matters, including Ameren's mo-

tions to dismiss the counts against it in Peters' second amended complaint and Riggs' amended

countercomplaint, and arguments related to Riggs' motion to reconsider. The same date, it en-

tered an order granting Riggs' motion to dismiss and/or strike any claim for property damage to

her vehicle.

¶ 35            On April 21, 2014, the trial court entered its written order. It granted Ameren's

motions to dismiss the counts against it in both Peters' second amended complaint and Riggs'

counterclaim with prejudice. The court also denied Riggs' motion to reconsider the court's dis-

missal of her claims against the City in her original countercomplaint and her request for leave to

file a third-party complaint against the City. Finally, the court entered findings pursuant to Rule

304(a), stating there was no just reason to delay the enforcement of, or appeal from, the court's

order as it related to those issues.

¶ 36            On May 12, 2014, Riggs filed a notice of appeal from the trial court's April 21,

2014 order (docketed by this court as case No. 4-14-0417). On May 19, 2014, Peters also filed a

notice of appeal from that order (docketed by this court as case No. 4-14-0418). Peters' and

Riggs' appeals have been consolidated for review.

¶ 37                                     II. ANALYSIS

¶ 38            On appeal, both Peters and Riggs argue the trial court erred by granting the City's

and Ameren's motions to dismiss the claims against them. The record reflects the City sought

dismissal of the claims against it pursuant to sections 2-615 and 2-619(a)(9) of the Code while


                                               - 17 -
Ameren sought dismissal of the claims against it under section 2-615.

¶ 39           "A motion to dismiss brought pursuant to section 2-615 of the Code attacks the

legal sufficiency of the complaint." In re Estate of Powell, 2014 IL 115997, ¶ 12, 12 N.E.3d 14.

Such a motion "presents the question of whether the facts alleged in the complaint, viewed in the

light most favorable to the plaintiff, and taking all well-pleaded facts and all reasonable infer-

ences that may be drawn from those facts as true, are sufficient to state a cause of action upon

which relief may be granted." Reynolds v. Jimmy John's Enterprises, LLC, 2013 IL App (4th)

120139, ¶ 25, 988 N.E.2d 984. "In ruling on a section 2-615 motion, the court only considers (1)

those facts apparent from the face of the pleadings, (2) matters subject to judicial notice, and (3)

judicial admissions in the record." Reynolds, 2013 IL App (4th) 120139, ¶ 25, 988 N.E.2d 984.

"A complaint should be dismissed under section 2-615 only if it is clearly apparent from the

pleadings that no set of facts can be proven that would entitle the plaintiff to recover." Powell,

2014 IL 115997, ¶ 12, 12 N.E.3d 14. "[T]he plaintiff must allege facts sufficient to bring a claim

within a legally recognized cause of action." Tedrick v. Community Resource Center, Inc., 235

Ill. 2d 155, 161, 920 N.E.2d 220, 223 (2009).

¶ 40           "A section 2-619 motion to dismiss admits the sufficiency of the complaint but

asserts an affirmative defense or other matter that avoids or defeats the claim." Illinois Ass'n of

Realtors v. Stermer, 2014 IL App (4th) 130079, ¶ 16, 5 N.E.3d 267. "Section 2-619(a)'s purpose

is to provide litigants with a method of disposing of issues of law and easily proved issues of fact

relating to the affirmative matter early in the litigation." Hascall v. Williams, 2013 IL App (4th)

121131, ¶ 16, 996 N.E.2d 1168. Section 2-619(a)(9) of the Code provides for dismissal where

"the claim asserted against [the] defendant is barred by other affirmative matter avoiding the le-


                                                - 18 -
gal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2012). "When ruling on the

section 2-619(a)(9) motion, the court construes the pleadings 'in the light most favorable to the

nonmoving party' [citation], and should only grant the motion 'if the plaintiff can prove no set of

facts that would support a cause of action' [citation]." Reynolds, 2013 IL App (4th) 120139,

¶ 31, 988 N.E.2d 984.

¶ 41           A trial court's decision to grant a motion to dismiss pursuant to either section 2-

615 or section 2-619 is subject to de novo review. Stermer, 2014 IL App (4th) 130079, ¶ 16, 5

N.E.3d 267. On review, "this court may affirm the trial court's judgment on any basis that is

supported by the record." Stoll v. United Way of Champaign County, Illinois, Inc., 378 Ill. App.

3d 1048, 1051, 883 N.E.2d 575, 578 (2008).

¶ 42                             A. Peters' Claims Against the City

¶ 43           In her amended complaint, Peters brought claims alleging negligence and willful

and wanton conduct against the City. "A complaint based upon negligence must set forth the

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

proximately resulting from that breach." DiBenedetto v. Flora Township, 153 Ill. 2d 66, 70, 605

N.E.2d 571, 573 (1992). Additionally, "[n]o separate and independent tort of willful and wanton

conduct exists in Illinois." Brooks v. McLean County Unit District. No. 5, 2014 IL App (4th)

130503, ¶ 20, 8 N.E.3d 1203. Instead, a claim alleging willful and wanton conduct is viewed as

an aggravated form of negligence and requires a plaintiff to plead and prove the basic elements

of a negligence claim in addition to alleging "either a deliberate intention to harm or a conscious

disregard for the plaintiff's welfare." Brooks, 2014 IL App (4th) 130503, ¶ 20, 8 N.E.3d 1203.

¶ 44           Here, the City sought and was granted dismissal of Peters' claims against it on the


                                              - 19 -
basis that it owed her no duty. "Whether a legal duty exists is a question of law to be determined

by the court." Powell, 2014 IL 115997, ¶ 14, 12 N.E.3d 14. In Illinois, a general rule has

evolved 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."

Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 158, 651 N.E.2d 1115, 1117 (1995). Only a

limited exception to this general rule exists "for pedestrians entering and exiting a lawfully

parked vehicle as intended and permitted users of the street immediately surrounding the vehi-

cle." Harden v. City of Chicago, 2013 IL App (1st) 120846, ¶ 20, 1 N.E.3d 1175 (citing

Curatola v. Village of Niles, 154 Ill. 2d 201, 210-11, 608 N.E.2d 882, 886-87 (1993)).

¶ 45           The duty owed by the City in this instance is articulated in section 3-102(a) of the

Tort Immunity Act, which provides as follows:

               "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 reasona-

               bly foreseeable that it would be used ***." (Emphasis added.)

               745 ILCS 10/3-102(a) (West 2012).

This provision "does not impose any new duties on municipalities" and, instead, "codifies a mu-

nicipality's general duty at common law to maintain its property in a reasonably safe condition."

Washington v. City of Chicago, 188 Ill. 2d 235, 239, 720 N.E.2d 1030, 1033 (1999); see also

Wagner v. City of Chicago, 166 Ill. 2d 144, 152, 651 N.E.2d 1120, 1124 (1995) ("[T]he purpose


                                              - 20 -
of section 3-102(a) is not to grant defenses and immunities. Instead, it merely codifies, for the

benefit of intended and permitted users, the common law duty of a local public body to properly

maintain its roads. Immunities and defenses are provided in other sections.").

¶ 46           In Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 419-20, 592 N.E.2d 1098, 1099-

100 (1992), a case relied upon by the City and Ameren, the plaintiff brought suit against a city

and electrical company after her husband was struck and killed by an automobile as he attempted

to cross a six-lane highway mid-block to get to his parked car. The plaintiff alleged the defend-

ants were negligent in the placement and maintenance of streetlights on the highway. Wojdyla,

148 Ill. 2d at 419, 592 N.E.2d at 1099. The circuit court granted the defendants' motions for

summary judgment and the plaintiff appealed. Wojdyla, 148 Ill. 2d at 419, 592 N.E.2d at 1099.

Ultimately, the supreme court affirmed the grant of summary judgment in the defendants' favor

on the basis that the decedent had not been an intended user of the highway where the accident

occurred. Wojdyla, 148 Ill. 2d at 428, 592 N.E.2d at 1104. In so holding, the court stated as fol-

lows:

                      "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 intersec-

               tions by custom. These are the indications of intended use. That


                                              - 21 -
               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 pro-

               tection of pedestrians crossing streets, and municipalities are

               charged with liability for those areas. Those areas do not, however,

               include a highway in mid-block." Wojdyla, 148 Ill. 2d at 426, 592

               N.E.2d at 1102-03.

See also Boub v. Township of Wayne, 183 Ill. 2d 520, 525, 702 N.E.2d 535, 538 (1998) (holding

"it is appropriate to look at the property involved in determining whether the plaintiff may be

considered an intended and permitted user of the road and bridge where the accident occurred");

Sisk v. Williamson County, 167 Ill. 2d 343, 351, 657 N.E.2d 903, 907 (1995) (stating a court

needs to "look no further than the property itself to determine the municipality's manifestations

of intent with regard to use of the property by pedestrians").

¶ 47           In this case, Peters acknowledges that, to subject the City to liability for her inju-

ries, she had to be an intended user of Chestnut Street. Further, she agrees a court must look to

the physical characteristics of the property at issue to determine a public entity's intentions with

respect to the use of the property. Here, Peters attempted to cross Chestnut Street between 18th

and 20th Streets when she was struck by Riggs' vehicle. She does not dispute the absence of a

crosswalk in the area or that the accident occurred mid-block and not within an intersection. In-

stead, Peters maintains "[t]he [12] pedestrian sidewalks that connect with Chestnut Street be-

tween 18th and 20th Streets midblock unequivocally establish [the City] intended for pedestrians


                                               - 22 -
to use Chestnut Street where [she] was hit."

¶ 48           Here, we find the trial court's dismissal of Peters' amended complaint pursuant to

section 2-615 of the Code was appropriate. Specifically, Peters failed to plead sufficient facts to

establish a duty owed to her by the City. She alleged only that she "walked in a northbound di-

rection across Chestnut Street between 18th and 20th Streets" and that the City "owed a duty to

exercise reasonable care [(or refrain from willful and wanton conduct)] in the ownership and

maintenance" of the streetlights on the south side of Chestnut Street. Peters did not allege any

facts to support a position that she was an intended user of Chestnut Street and, in particular,

failed to reference the 12 pedestrian sidewalks she now claims are evidence of the City's intent

that pedestrians use the area of Chestnut Street where her accident occurred. As a result, we find

the trial court's dismissal of Peters' claims against the City was appropriate pursuant to section 2-

615 of the Code for failing to state a cause of action. See Hough v. Kalousek, 279 Ill. App. 3d

855, 860, 665 N.E.2d 433, 436 (1996) ("Because [the] plaintiff did not plead that [the] decedent

was standing in a crosswalk, the complaint did not establish any duty by [the public entity] to-

wards the decedent.").

¶ 49           We note, although Peters did not allege the existence of the 12 pedestrian side-

walks in her pleadings, the trial court appears to have taken them into account in its considera-

tion of the dismissal motions. In its written order granting the City's motions to dismiss, the

court stated as follows:

               "For purposes of the Motions, the court would further accept and

               find that between 18th and 20th [S]treets there are sidewalks which

               run and are located parallel to Chestnut Street and that there are


                                               - 23 -
               various paved surfaces which are connected to the parallel side-

               walks, which run perpendicular to the street curb."

"Courts may take judicial notice of matters which are commonly known, or, if not commonly

known, are readily verifiable from sources of indisputable accuracy." People v. Fisher, 184 Ill.

2d 441, 455, 705 N.E.2d 67, 75 (1998). Further, a court may take judicial notice of geographical

facts and "case law supports the proposition that information acquired from mainstream Internet

sites such as MapQuest and Google Maps is reliable enough to support a request for judicial no-

tice." People v. Clark, 406 Ill. App. 3d 622, 633, 940 N.E.2d 755, 766 (2010).

¶ 50           Here, although no party requested it do so, the trial court's comments indicate it

took judicial notice of the existence of the 12 pedestrian sidewalks relied upon by Peters. The

record contains support for such action in the form of printouts from Google Earth and Google

Maps, which depict the area of Chestnut Street in question. Additionally, we note the City does

not dispute the existence of the 12 sidewalks at issue. Relying on these additional facts, the court

determined Peters was not an intended user of Chestnut Street "within the meaning of applicable

law." We agree and find, as a matter of law, that even considering the 12 pedestrian sidewalks at

issue, no duty was owed by the City to Peters.

¶ 51           As stated in Wojdyla, 148 Ill. 2d at 426, 592 N.E.2d at 1103, "[p]edestrian walk-

ways are designated by painted crosswalks by design, and by intersections by custom," and such

are "indications of intended use." More recently, the First District additionally looked to the ab-

sence of curb cuts or slopes for pedestrian access when determining that the nature of the city

property at issue indicated pedestrians were not intended users of a city street. Dunet v. Sim-

mons, 2013 IL App (1st) 120603, ¶ 29, 989 N.E.2d 279. In this case, it is undisputed that no


                                                 - 24 -
painted crosswalk existed on Chestnut Street between 18th and 20th Streets and Peters was not

crossing Chestnut Street at an intersection. Further, we find nothing in the record to show that

the 12 perpendicular sidewalks along Chestnut Street also contained curb cuts or slopes, which

could indicate pedestrians were intended to access the street at those 12 locations. (In its written

order, the trial court specifically found no curb cuts or sloped surfaces existed.) In short, while

pedestrians may have been intended users of those perpendicular sidewalks, we find nothing

which would evidence an intention by the City that pedestrians continue into and across the

street at those locations.

¶ 52            Peters cites three cases in support of her position on appeal. First, she relies on

Curatola, 154 Ill. 2d at 215, 608 N.E.2d at 889, wherein the supreme court held a plaintiff's "use

of the immediately surrounding street to exit his vehicle was permitted and intended." In so

holding, the court stated the plaintiff's use of the portion of the street surrounding his vehicle

"was mandated by virtue of the fact that he had parked his vehicle and had to exit or reenter it."

Curatola, 154 Ill. 2d at 215-16, 608 N.E.2d at 889.

¶ 53            We find Curatola is factually distinguishable from the present case and sets forth

only a narrow exception to the general rule that pedestrians are not intended users of a city street.

Notably, in this case, Peters was not alleged to have been traversing an area of the street in order

to access a parked vehicle. Rather, she attempted to cross Chestnut Street mid-block. Therefore,

she was not in an area of the street that she was required to access. See Vaughn, 166 Ill. 2d at

161, 651 N.E.2d at 1118 (distinguishing Curatola on the basis that, in Curatola, "it was impossi-

ble for the pedestrian to access the vehicle or the sidewalk without walking in the street" (em-

phasis in original)). The holding in Curatola is inapplicable to Peters' claims.


                                               - 25 -
¶ 54           Second, plaintiff cites Kavales v. City of Berwyn, 305 Ill. App. 3d 536, 539, 712

N.E.2d 842, 844 (1999), wherein an individual who had been walking on a sidewalk "fell after

stepping into a depressed area of the pavement, as she was crossing a public alley." The First

District looked to the nature of the property to determine whether the individual had been an in-

tended user and noted the property at issue "was at the junction of a public alley and a street,

more specifically, where the sidewalk converged with the alley, within the lateral lines of the

sidewalk to the north and south of the alley." Kavales, 305 Ill. App. 3d at 543, 712 N.E.2d at

847. The court then relied on a provision of the Illinois Vehicle Code—requiring a driver

emerging from an alley to yield the right-of-way to any pedestrian—to find that the legislature

had made it "clear that pedestrians are intended users of such an area." Kavales, 305 Ill. App. 3d

at 543, 712 N.E.2d at 847 (" 'The driver of a vehicle emerging from an alley *** shall stop such

vehicle immediately prior to driving into the sidewalk area extending across such alley *** and

shall yield the right-of-way to any pedestrian as may be necessary to avoid collision ***.' " (Em-

phases omitted.) (quoting 625 ILCS 5/11-1205 (West 1994))). Further, the court noted that

while the intersection of the alley and the street was technically not a statutory intersection, cit-

ing to Vaughn, it found the intersection was the type "at which pedestrians are intended users by

custom" and that she had been "in the 'sidewalk area,' which is intended for pedestrians."

Kavales, 305 Ill. App. 3d at 544, 712 N.E.2d at 847-48.

¶ 55           We also find Kavales distinguishable. Again, Peters was injured while attempting

to cross Chestnut Street mid-block. She was in the travelled portion of the street when struck

and not in a location intended for pedestrians by custom. See DeMambro v. City of Springfield,

2013 IL App (4th) 120957, ¶ 25, 990 N.E.2d 1255 ("The primary lanes of the street are intended


                                               - 26 -
exclusively for vehicles, subject to crosswalks and other specifically indicated pedestrian areas

***."). Additionally, unlike in Kavales, we find no statutory authority which would support Pe-

ters' position that she was an intended user of Chestnut Street at the location of her accident.

¶ 56           Third, Peters cites Gutstein v. City of Evanston, 402 Ill. App. 3d 610, 612, 929

N.E.2d 680, 684 (2010), wherein the plaintiff alleged she fell and was injured in an alley behind

her home as she was attempting to reach a waste disposal bin provided for her use by the city.

The First District first noted the general rule that an alley is a roadway designed for vehicular,

rather than pedestrian, traffic. Gutstein, 402 Ill. App. 3d at 617, 929 N.E.2d at 688. However, it

further noted that the city at issue had "established a policy requiring its residents to place their

trash, recycling, and yard waste containers in the alley, which [was] municipal property."

Gutstein, 402 Ill. App. 3d at 618, 929 N.E.2d at 689. The court found the logical inference from

that policy was that the city also intended that a resident "be able to access [their] waste contain-

ers and that means walking in the alley in order reach them." Gutstein, 402 Ill. App. 3d at 621,

929 N.E.2d at 691. The court held that pedestrians were "intended users of the alley when they

walk[ed] in the alley only to access their waste containers." (Emphasis added.) Gutstein, 402 Ill.

App. 3d at 620, 929 N.E.2d at 691.

¶ 57           Gutstein is also distinguishable from the case at bar. Like Curatola, Gutstein sets

forth only a narrow exception to a general rule. The facts of that case showed the municipality

required its residents to place waste-disposal bins on city property and, as a result, it was ex-

pected that pedestrians would have to traverse city property to reach the bins. There was no sim-

ilar requirement upon Peters in this case.

¶ 58           In her reply brief, Peters clarifies that she is not contending "that the [12 perpen-


                                               - 27 -
dicular] sidewalks created de facto crosswalks but *** that the sidewalks are a physical manifes-

tations [sic] that clearly establish that [the City] intended pedestrians to utilize Chestnut Street."

The implication from Peters' argument is that the 12 sidewalks at issue evidenced an intent by

the City that pedestrians were intended users of Chestnut Street between 18th and 20th Street in

its entirety (an argument that Peters explicitly made before the trial court). We find such an ex-

pansively defined pedestrian way to be without legal support. In the absence of physical mani-

festations demonstrating Peters was an intended user of the travelled portion of a city street mid-

block and not within a crosswalk, we find her pleading failed to establish the City owed her a

duty. The trial court committed no error in dismissing Peters' claims against the City.

¶ 59           In her response to the City's motion to dismiss, Peters requested leave to file an

amended complaint; however, the trial court granted the City's motion to dismiss with prejudice.

"Whether to dismiss an action with or without prejudice is a matter within the trial court's discre-

tion." Crull v. Sriratana, 388 Ill. App. 3d 1036, 1046, 904 N.E.2d 1183, 1191 (2009). "On re-

view, we consider whether the court took the particular facts and unique circumstances of the

case into account before determining that the case should be dismissed with prejudice." Crull,

388 Ill. App. 3d at 1046, 904 N.E.2d at 1191. Additionally, "a cause of action should not be

dismissed with prejudice unless it is clear that no set of facts can be proved under the pleading

which would entitle the plaintiff to relief." Smith v. Central Illinois Regional Airport, 207 Ill. 2d

578, 584-85, 802 N.E.2d 250, 254 (2003). Here, we find no abuse of discretion.

¶ 60           At a hearing on the motions to dismiss, Peters made assertions regarding what her

amended pleadings would consist of, stating as follows:

               "[T]his is the pleading stage, and I would seek leave to amend the


                                                - 28 -
               plaintiff's Amended Complaint adding specific allegations about

               the plaintiff being an intended user based upon the physical charac-

               teristics of the property specifically the sidewalks that have been

               discussed here today and are addressed in the briefs, the number of

               them, their location, and the fact that we believe this indicates in-

               tent on behalf of the [C]ity. So I would seek leave to amend the

               Complaint consistent with the facts in the case."

Peters' representations to the trial court indicate any amendment to her pleading would have fo-

cused on the 12 perpendicular pedestrian sidewalks on Chestnut Street between 18th and 20th

Streets and her position that those sidewalks were manifestations of the City's intent that pedes-

trians were intended users of Chestnut Street. As set forth above, the City owed no duty to Pe-

ters based upon the 12 pedestrian sidewalks and an amended pleading based upon those facts

would not have stated a cause of action upon which Peters could have obtained relief.

¶ 61           Additionally, we note that both before the trial court and on appeal, Peters has not

suggested the existence of any other facts which could support a finding of a duty owed by the

City and upon which she could base an amended pleading. As a result, we find the court com-

mitted no error in dismissing Peters' claims against the City with prejudice.

¶ 62                            B. Peters' Claims Against Ameren

¶ 63           In her second amended complaint, Peters brought claims against Ameren for neg-

ligence and breach of contract. She also raised a voluntary undertaking theory of liability when

arguing her position before the trial court. Initially, we note that on appeal Peters does not raise

any specific argument with respect to her breach of contract claim or voluntary undertaking


                                               - 29 -
claim against Ameren. Therefore, as Ameren maintains, Peters has forfeited any claim of error

related to the dismissal of those claims. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) ("Points

not argued [in an appellant's brief] are waived and shall not be raised in the reply brief, in oral

argument, or on petition for rehearing.").

¶ 64           With respect to Peters' ordinary negligence claim against Ameren, the record re-

flects the trial court granted Ameren's motion to dismiss pursuant to section 2-615 of the Code

on the basis that Ameren owed no duty to Peters. On appeal, Peters argues the trial court erred

because, as the owner of the streetlights on Chestnut Street, Ameren owed her a common law

duty to maintain its property in a reasonably safe condition.

¶ 65           Both before the trial court and on appeal, Ameren relies on Wojdyla and Dunet to

support its position that, like the City, it owed no duty to Peters because she crossed a city street

mid-block and not within a crosswalk. As discussed, in Wojdyla, 148 Ill. 2d at 419, 592 N.E.2d

at 1099, the plaintiff filed a complaint against a municipality and a utility company, alleging

"negligence in the placement and maintenance of streetlights on the highway," after her husband

was struck by a vehicle and killed while attempting to cross a highway. The supreme court af-

firmed the grant of summary judgment in favor of both defendants after finding no duty owed to

the decedent because he was not an intended user of the highway. Wojdyla, 148 Ill. 2d at 428,

592 N.E.2d at 1104. In so holding, the court noted as follows: "The plaintiff has stated that [the

utility company's] duties were co-extensive with the City's. Since [the utility company's] liabili-

ties cannot be any greater than those of the City, the opinion will address itself primarily to the

City." Wojdyla, 148 Ill. 2d at 420, 592 N.E.2d at 1100.

¶ 66           Similarly, in Dunet, 2013 IL App (1st) 120603, ¶ 1, 989 N.E.2d 279, the plaintiff


                                               - 30 -
brought suit against a municipality and a utility company after the plaintiff's decedent was struck

by a vehicle on a city street and killed. In that case, it was "undisputed that at the time of the ac-

cident, the streetlights near the intersection were inoperable and that decedent did not cross in a

marked crosswalk." Dunet, 2013 IL App (1st) 120603, ¶ 1, 989 N.E.2d 279. Ultimately, the

First District determined summary judgment in favor of both the municipality and the utility

company was appropriate because the plaintiff failed to show the decedent was an intended user

of the street and that the decedent was, therefore, owed a duty. Dunet, 2013 IL App (1st)

120603, ¶ 31, 989 N.E.2d 279.

¶ 67           Peters argues Wojdyla and Dunet are distinguishable from the present case be-

cause, here, Ameren owned the streetlights at issue. She contends that in Wojdyla, the utility's

involvement was limited to the installation of streetlights owned by the municipality and in

Dunet, the municipality had been responsible for maintaining and inspecting the streetlights. See

Wojdyla, 148 Ill. 2d at 420, 592 N.E.2d at 1100 (noting the utility company "erected the lights

lining" the highway); Dunet, 2013 IL App (1st) 120603, ¶ 15, 989 N.E.2d 279 (referencing tes-

timony that an employee of the municipality "was in charge of repairing the streetlight power

outage"). However, to support her position that Ameren's ownership of the streetlights warrants

a different result, Peters relies on a premises-liability case. See Ward v. K mart Corp., 136 Ill. 2d

132, 141, 554 N.E.2d 223, 227 (1990). We find case authority which sets forth the duties owed

by landowners and occupiers is inapplicable to Peters' claims in the instant case. As noted by the

trial court: "Ameren is not being sued by Peters as the owner of [the] premises upon which a

dangerous condition was permitted. Rather Ameren is brought into this litigation for its alleged

failure to provide or maintain a service (the illumination from its street[]lights)." Like the trial


                                                - 31 -
court, we find Wojdyla and Dunet are supportive of Ameren's position that it owed no duty to

Peters for failing to provide illumination on a city street where Peters was not an intended user of

the city street because she crossed the street mid-block and outside of a marked crosswalk.

¶ 68            Additionally, we find no error in the trial court's decision to grant dismissal in

Ameren's favor with prejudice. We note Peters had already been granted leave to amend her

claims against Ameren and it was from her second amended complaint that dismissal was grant-

ed. Peters has not argued on appeal that the court's dismissal with prejudice constituted an abuse

of its discretion or that she should be granted a further opportunity to amend her pleading.

¶ 69                             C. Riggs' Claims for Contribution

¶ 70            On appeal, Riggs challenges the dismissal of her claims for contribution against

the City and Ameren. She argues that the City—and, derivatively, Ameren—owed Peters a

common law duty to maintain its property in a reasonably safe condition.

¶ 71            The Contribution Act provides that "where [two] or more persons are subject to

liability in tort arising out of the same injury to person or property, or the same wrongful death,

there is a right of contribution among them, even though judgment has not been entered against

any or all of them." 740 ILCS 100/2(a) (West 2012). "[A] party's obligation to make contribu-

tion rests on his liability in tort to the injured or deceased party, i.e., the plaintiff in the underly-

ing action." Vroegh v. J&M Forklift, 165 Ill. 2d 523, 528, 651 N.E.2d 121, 125 (1995). Alt-

hough no requirement exists that the bases for liability among contributors be the same, "some

basis for liability to the original plaintiff must exist." Vroegh, 165 Ill. 2d at 528-29, 651 N.E.2d

at 125. Additionally, "a defendant cannot escape his statutory liability for contribution even

though the plaintiff's complaint is subject to some procedural bar [citation] or immunity [cita-


                                                 - 32 -
tions] that might ultimately preclude the plaintiff from recovering from the defendant directly."

Vroegh, 165 Ill. 2d at 529-30, 651 N.E.2d at 125.

¶ 72           According to Riggs, under the common law, the City's liability did not depend

upon whether Peters was an intended and permitted user of the street where her injury occurred.

She contends section 3-102(a) of the Tort Immunity Act (745 ILCS 10/3-102(a) (West 2012))

added the "intended and permitted" user language as a limitation, thereby granting an immunity

to the City. To support her position, Riggs maintains that pre-1965 case law, which predates the

Tort Immunity Act and embodies the common law, fails to suggest that courts "made any dis-

tinction between intended and permitted users of city property and those who were not." Ac-

cording to Riggs, if section 3-102 is viewed not as a codification of a municipality's duty to users

of its premises but, instead, as a statutory immunity to be pleaded as an affirmative defense, she

has adequately asserted a claim for contribution against the City and Ameren as they are "subject

to liability in tort" under the Contribution Act.

¶ 73           Here, we disagree with Riggs' assertion that section 3-102(a) does not define the

City's duty and, instead, describes an immunity. The supreme court has held that section 3-

102(a) "does not impose any new duties on municipalities" and, instead, codifies a municipality's

duty at common law. Washington, 188 Ill. 2d at 239, 720 N.E.2d at 1033. Further, it has ex-

pressly stated that section 3-102(a) does not grant defenses and immunities and that

"[i]mmunities and defenses are provided in other sections" of the Tort Immunity Act. Wagner,

166 Ill. 2d at 152, 651 N.E.2d at 1124. Thus, Riggs' position is contradicted by supreme court

authority.

¶ 74           Additionally, we disagree with Riggs' contention that no "distinction" existed in


                                                - 33 -
pre-1965 case law for "intended and permitted" users of city property. A city's legal responsibil-

ity to maintain its property in a reasonably safe condition is not absolute and, even at common

law, limitations on that responsibility existed. Although the case law may not express such limi-

tations using the precise language found in section 3-102(a) of the Tort Immunity Act, we find

several cases that discuss limitations on liability based on a municipality's intentions for use of

the property at issue. See Maxey v. City of East St. Louis, 158 Ill. App. 627, 630 (1910) ("The

true rule in all cases, we think, is that a city is only required to maintain the respective portions

of its streets in reasonably safe condition for the purposes to which they are respectively devoted

by the intention and sanction of the city."); Kohlhof v. City of Chicago, 192 Ill. 249, 251, 61 N.E.

446, 446 (1901) ("All portions of a public street, from side to side and end to end, are for the

public use in the appropriate and proper method, but no greater duty is cast upon the city than

that it shall maintain the respective portions of streets in reasonably safe condition for the pur-

pose for which such portions of the street are, respectively, devoted."); Thien v. City of Belleville,

331 Ill. App. 337, 345, 73 N.E.2d 452, 456 (1947) ("Municipal corporations are not insurers

against accidents, and the only duty cast upon the city is that it shall maintain the respective por-

tions of the street in reasonably safe condition for the purposes to which such portions of the

street are devoted."); Cogdill v. City of Marion, 22 Ill. App. 2d 99, 103, 159 N.E.2d 28, 30

(1959) ("A municipality is required to maintain its streets and sidewalks, including parkways, in

a reasonably safe condition considering the use to be made of such area."); Storen v. City of Chi-

cago, 373 Ill. 530, 535, 27 N.E.2d 53, 55 (1940) ("Sidewalks are intended for the use of pedes-

trians and the duty of a city is to build and maintain them in a reasonably safe condition for the

purpose for which they are intended."); VanCleef v. City of Chicago, 240 Ill. 318, 327, 88 N.E.


                                                - 34 -
815, 817 (1909) (stating "under ordinary circumstances it is the duty of a city to see that its

streets are reasonably safe for the uses for which streets are intended").

¶ 75           Here, the trial court dismissed Peters' claims against the City and Ameren after

finding neither defendant owed Peters a duty of care and, as a result, she could not state a viable

cause of action against either defendant. Thus, dismissal against those defendants was not grant-

ed on the basis of an affirmative defense. As discussed, we agree with the trial court's decision

and find neither the City nor Ameren owed a duty to Peters under the circumstances presented.

According to Vroegh, because there was no basis for liability against the City and Ameren as to

Peters, Riggs' contribution claims must also fail. Therefore, we find no error in the court's dis-

missal of Riggs' contribution claims.

¶ 76                                    III. CONCLUSION

¶ 77           For the reasons stated, we affirm the trial court's judgment.

¶ 78           Affirmed.




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