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    Posted on August 1, 2013 To

    Clifford’s Notes, Chicago Lawyer August 1, 2013

    By Robert A. Clifford

    The lights were out for a four-block area down 95th Street in Oak Lawn due to a malfunction that Commonwealth Edison repaired, but because of a lack of communication or just plain laziness, the street lights were not back on for five days.

    On the fourth night, a woman crossed 95th Street at Kenton Avenue, an intersection where there’s a bus stop. It’s dark out. A retired Chicago Transit Authority driver, who drove a bus for 26 years, was in his car and did not see her. She was struck and killed.

    The estate of the woman sues ComEd and Oak Lawn for their failure to fix such a busy stretch of roadway more promptly or, in the alternative, to bring in temporary lighting while the repairs dragged on. Email communications between defendants revealed the streetlights needed to be back in service for “safety reasons.”

    The Illinois Appellate Court held that without the benefit of discovery, as a matter of law, the protection of the Governmental Tort Immunity Act would be extended to the village as well as to the private company, ComEd. The appellate court held that the pedestrian was not a “permitted and intended user” of the street and the summary judgment for the defendants of the matter was upheld. Dunet v. Simmons, ___ N.E.2d ___, 2013 IL App (1st) 120603. The court further held the inoperable streetlights were merely a condition and not the proximate cause of the accident. At this writing, the case is pending before the Illinois Supreme Court on a petition for leave to appeal.

    The case represents an inequitable result, considering that the plaintiff pedestrian and the driver followed all of the rules. The driver certainly shares in responsibility. However, when a 26-year veteran bus driver of the CTA who drives the speed limit and is aware of all surroundings when driving, but says that he simply didn’t see the pedestrian because it was so dark, it certainly seems fair to have a jury decide whether the village and electric company who waited for days before fixing a busy four-block stretch of street should share in the responsibility. Tragically, the lights came back on the day after the pedestrian was killed.

    The defendants emphasized the fact that the crosswalk at which the plaintiff was crossing was unmarked. Despite undisputed evidence submitted in affidavits from people who worked in the area that pedestrians crossed at Kenton all the time because of the bus stop there and because the nearest marked intersection was two blocks away, it was reasonable to assume that the village knew and permitted people to cross the street there all the time, which was at the least a disputed fact.

    How much of a factor visibility was a cause of the incident should be left to a jury.

    Counsel for plaintiffs pointed out that the definition of a crosswalk should be part of the discussion, as defined by 625 ILCS 5/1-113(a). The courts, in interpreting the language, have found that part of the roadway to include “Marked or unmarked crosswalks as intended for the protection of pedestrians crossing streets and municipalities.” Wojdyla v. City of Park Ridge, 148 Ill.2d 417, 424 (1992) (emphasis added).

    In its brief to the 1st District Appellate Court, the plaintiff cited Biel v. City of Bridgeview, 335 Ill.App.3d 526 (1st Dist. 2002). The facts were similar there — a motorist traveling about 30 mph on 79th Street struck and killed a pedestrian in the dark in an area where one streetlight was out. The Biel plaintiff filed a complaint against the city of Bridgeview and two electrical contractors alleging negligence in failing to maintain and control a certain light post which was intended to provide sufficient lighting to that portion of 79th Street where the accident occurred.

    The 1st District reversed summary judgment for defendant and found that, while the pedestrian’s conduct may factor into his contributory negligence, a genuine issue of material fact existed as to whether the defendant’s conduct in failing to replace the streetlight was a material element and a substantial factor in the death. The court held these questions could not be determined as a matter of law. In Dunet, however, the court made its determination in favor of the defendants without even the benefit of the investigating police officer’s deposition because discovery had been stayed by the trial court.

    Another troubling aspect of this case is the court appearing to extend the protection of the Tort Immunity Act 745 ILCS 10/3-102(a) to a private company. Certainly it is clear that a municipality enjoys the protections of the long-established Governmental Tort Immunity Act. Here, that means whether the pedestrian was an intended user on the street and the village’s duty to that person should be examined, but the appellate court included ComEd in this discussion and that deserves greater scrutiny.

    Whether the failure to provide adequate lighting at a busy intersection contributed to the death of a pedestrian certainly seems like a question that should go to a jury.

    Perhaps the Supreme Court will accept the PLA and take a closer look at what happened in this case, which will serve as direction for all future similar cases, particularly given the divergent opinions from the 1st District.