author: JUSTICE H. LEWIS JUSTICE CHAPMAN,

text:
    MARY GABRIEL, Plaintiff-Appellee, v. THE CITY OF EDWARDSVILLE, Defendant-Appellant.
    Fifth District
    No. 5—91—0402
    Opinion filed December 4, 1992.
    CHAPMAN, J., dissenting..

      Robert W. Wilson and Alexander M. Wilson, both of Evans & Dixon, of Edwardsville, for appellant.
    Sharon A. Knapp, of Carr, Korein, Kunin, Tillery, Montroy, Glass & Bogard, of Belleville, for appellee.
   JUSTICE H. LEWIS

delivered the opinion of the court:

Plaintiff, Mary Gabriel, brought this action against defendant, City of Edwardsville, to recover injuries she sustained when she walked into the street about five or six steps and tripped over a water main cover while on her way to her son’s house. Plaintiff was not walking within a crosswalk when she fell. Plaintiff contends that defendant had a duty to maintain the street and that its failure to repair the raised water main cover created a dangerous condition. On August 29, 1990, the defendant moved for summary judgment. One of defendant’s alleged grounds for summary judgment was that a municipality owes no duty to pedestrians crossing the street outside of the crosswalk. The circuit court denied the defendant’s motion for summary judgment. Subsequently, at the close of the plaintiff’s case, the defendant moved for a directed verdict, alleging that the plaintiff had failed to show that the City of Edwardsville breached a duty of care. The circuit court denied the defendant’s motion. Two days later, at the close of all of the evidence, the defendant renewed its motion for a directed verdict. Once again the circuit court denied the defendant’s motion. On April 11, 1991, the jury returned a verdict in favor of the plaintiff for $14,361.14, and judgment was entered accordingly. The defendant filed a post-trial motion on May 3, 1991. On May 17, 1991, the circuit court denied the defendant’s post-trial motion.

Defendant appeals, claiming that the City of Edwardsville had no duty to safeguard the plaintiff, a pedestrian, who was using the street as a walkway and was not within the crosswalk.

Plaintiff counters with the argument that a duty existed because she was an intended and permitted user of the street. Because the sidewalk ended on the side of the street in which she was walking, she argues she was required to walk across the street. This argument is based upon section 3—102(a) of the Local Governmental and Governmental Employees Tort Immunity Act, which states 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 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 sufficient time prior to an injury to have taken measures to remedy or protect against such condition.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 85, par. 3—102(a).)

Thus, for a pedestrian to be protected by this statute, he must be a permitted and intended user of the property under control of the city. (Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 422, 592 N.E.2d 1098, 1101.) Further, to establish a cause of action for negligence, the plaintiff must show that the defendant owed a duty of care, the defendant breached the duty, and an injury was proximately caused by the breach. (Wojdyla, 148 Ill. 2d at 421, 592 N.E.2d at 1100.) We agree with the defendant that no duty existed; therefore, we reverse.

Defendant has cited several cases in support of its view that the plaintiff was not an intended and permitted user of the street. The case which is most analogous to the case at bar is Greene v. City of Chicago (1991), 209 Ill. App. 3d 311, 567 N.E.2d 1357. In Greene, the plaintiff, a pedestrian, fell into a pothole in the street while on his way to a friend’s house. The plaintiff was not walking within a crosswalk when he fell. The circuit court granted summary judgment for the defendant and stated that the streets are made for automobiles, not for pedestrians, except at intersections where there are marked or unmarked crosswalks. The appellate court agreed with the circuit court and held that a municipality owes no duty to warn pedestrians of any hazards outside of the crosswalk when a pedestrian is not using the crosswalk. (Greene, 209 Ill. App. 3d at 313, 567 N.E.2d at 1358.) Several other cases have held likewise. (Curatola v. Village of Niles (1992), 230 Ill. App. 3d 743, 746, 598 N.E.2d 945, 946; Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, 913, 556 N.E.2d 660, 661; Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 331, 527 N.E.2d 572, 573; Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 831, 502 N.E.2d 357, 360.) When pedestrians use the public streets as walkways, the law imposes no general duty upon a municipality to safeguard pedestrians. (Greene, 209 Ill. App. 3d at 313, 567 N.E.2d at 1358; Vlahos, 198 Ill. App. 3d at 913, 556 N.E.2d at 661; Mason, 173 Ill. App. 3d at 332, 527 N.E.2d at 573; Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 478, 300 N.E.2d 590, 593.) To impose such a duty on a municipality would overextend its function. (Curatola, 230 Ill. App. 3d at 745, 598 N.E.2d at 946; Greene, 209 Ill. App. 3d at 313, 567 N.E.2d at 1358; Mason, 173 Ill. App. 3d at 332, 527 N.E.2d at 573; Deren, 13 Ill. App. 3d at 478, 300 N.E.2d at 593.) Hence, the law is clear that a municipality owes no duty to a pedestrian crossing a public street outside of the crosswalk. Greene, 209 Ill. App. 3d at 313, 567 N.E.2d at 1358; Vlahos, 198 Ill. App. 3d at 913, 556 N.E.2d at 661; Mason, 173 Ill. App. 3d at 332, 527 N.E.2d at 573; Deren, 13 Ill. App. 3d at 478, 300 N.E.2d at 593.

The street is to be used for vehicular traffic, not pedestrians (Risner, 150 Ill. App. 3d at 831, 502 N.E.2d at 359), and it is reasonable that a municipality would foresee that only vehicular traffic would use the street (Curatola, 230 Ill. App. 3d at 746, 598 N.E.2d at 947; Mason, 173 Ill. App. 3d at 332, 527 N.E.2d at 573), while pedestrians would use the crosswalk to cross to the other side of a street (Mason, 173 Ill. App. 3d at 332, 527 N.E.2d at 573). Even when a street is continuously used by pedestrians, we find no Illinois authority which permits the conversion of the street into a sidewalk. (Deren, 13 Ill. App. 3d at 477, 300 N.E.2d at 593.) Further, a municipality has no duty to install sidewalks; therefore, it is unreasonable to require a municipality to continue an existing sidewalk. (Frakes v. Martin (1987), 151 Ill. App. 3d 676, 678, 503 N.E.2d 556, 558; Best v. Richert (1979), 72 Ill. App. 3d 371, 374, 389 N.E.2d 894, 896.) Thus, the plaintiff was not an “intended” user of the street because the streets are designated for use by vehicular traffic— not pedestrians. (Ramirez v. City of Chicago (1991), 212 Ill. App. 3d 751, 753, 571 N.E.2d 822, 826.) Therefore, we need not determine whether the plaintiff was a “permitted” user of the street because to prove that the City owed a duty, the plaintiff must show that she was both an “intended” and a “permitted” user of the street. Ramirez, 212 Ill. App. 3d at 753, 571 N.E.2d at 826.

Plaintiff cites Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, 525 N.E.2d 242, for the proposition that municipalities have a duty to pedestrians in areas other than crosswalks. In Di Domenico (171 Ill. App. 3d at 294, 525 N.E.2d at 243), the plaintiff was injured when he fell into a hole while walking on the street to obtain some items from the trunk of his legally parked vehicle. The Di Domenico court concluded that since the city permitted curbside parking on the street where the plaintiff fell into the hole, the city must have realized that pedestrians would be walking on that portion of the street as a means of ingress and egress to and from their vehicles. (Di Domenico, 171 Ill. App. 3d at 295, 525 N.E.2d at 243.) The instant case, however, does not present a similar factual situation. Therefore, we con-elude that the city has no duty to a pedestrian such as the plaintiff who walked into the street about five to six steps and tripped over a water main cover. The plaintiff in the present case was not en route to or from her motor vehicle but was crossing the street outside the crosswalk to go to her son’s house; thus, Di Domenico is distinguishable.

Further, our supreme court recently reiterated the well-established principles that the streets are for the use of moving automobiles and no duty attaches when pedestrians cross the street outside of a crosswalk. (Wojdyla, 148 Ill. 2d at 425, 592 N.E.2d at 1102.) In fact, the Wojdyla court stated as follows:

“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 mid-block.” Wojdyla, 148 Ill. 2d at 426, 592 N.E.2d at 1102-03.

Accordingly, we have determined that the plaintiff was not an intended user of the street; therefore, the City of Edwardsville did not owe her a duty. Hence, we refuse to impose such a duty and believe that the defendant’s motion for directed verdict should have been granted.

For the foregoing reasons, the judgment of the circuit court is reversed.

Reversed.

RARICK, J., concurs.

JUSTICE CHAPMAN,

dissenting:

“The path down the river was beaten out little more than a deer path but you could tell the way it ran that no wild beasts made this. No, these were human feet. They knew where they were going. A foot path was a pleasing road to travel on, for it came to all things in the woods in time, the rotten log worn through in the middle to let you by, the bed of moss that had brown spots from feet, the sandy runs and cold spring, the narrows where the path clung to the sidehill, the hickory flats, the buck laurel and big whortleberry bushes in the swamp — the path got to all of them in time.” C. Richter, The Trees, at 69.
“ ‘Lawsey me!’ Sayward said. ‘If Tateville’s entitled to the court house, let them have it.’
It didn’t bother her any. Everybody knew Tateville was bigger than Moonshine Church. It was richer, too, they said, with ditches dug on both sides of its main street, and sidewalks laid in brick or stone and no team had dared to drive over them.” C. Richter, The Town, at 47.

Conrad Richter’s novels about Sayward, her frontier family, and the transformation of her spot in Ohio from an unbroken canopy of trees to the Village of Moonshine Church to the town of Americus contain these descriptions of changes in walkways. These books cover the period from just after the Revolutionary War to just before the Civil War, a mere 75 years of history, but those years transported people’s feet from deer trails to stone sidewalks. Cases in Illinois involving injuries from falls in the streets cover nearly twice the number of years spanned in Richter’s novels, and the changes in attitudes toward them have been almost as dramatic as the changes in Sayward’s spot.

Since the Tort Immunity Act, which begins the majority’s discussion, imposes no new duties but simply articulates common law principles that existed prior to the Act’s codification (Santelli v. City of Chicago (1991), 222 Ill. App. 3d 862, 867, 584 N.E.2d 456, 459), one of the first questions that needs to be answered is, What was the common law on the liability of municipalities for injuries caused to pedestrians by defects in the streets?

Interestingly enough, one of the common law’s first concerns was not whether a duty was owed to those in the streets, but rather whether a duty was owed to those on the sidewalks. (City of Bloomington v. Bay (1867), 42 Ill. 503.) This seemingly inverted concern is, however, only a reflection of the historical development. Deer trails became paths; paths became roads that led to towns; then there were streets within towns, first without sidewalks and only later with them. Early Illinois courts had little trouble in imposing a duty on municipalities to provide reasonably safe public ways for their citizens, regardless of whether the way was a street or sidewalk. The recognition of this duty continued uninterrupted for well over 100 years. See Browning v. City of Springfield (1855), 17 Ill. 143.

The word “street” was recognized at common law as encompassing all urban ways which were generally used for ordinary purposes of travel. The sidewalk was considered to be a part of the street which the municipal authorities set apart for the use of pedestrians. (City of Elmhurst v. Buettgen (1946), 394 Ill. 248, 252, 68 N.E.2d 278, 281.) The purpose of a street, including sidewalks, is “to afford a way for traffic, both pedestrian and vehicular, to the public, and the public is rightfully entitled to the use of such thoroughfare.” People ex rel. Herman Armanetti, Inc. v. City of Chicago (1953), 415 Ill. 165, 168, 112 N.E.2d 616, 617.

Early on, the common law recognized that a cause of action for damages resulting from negligence would lie against a municipality for injuries resulting from the negligent maintenance of the streets. (Browning v. City of Springfield (1855), 17 Ill. 143.) In the late 19th century municipalities were required to maintain streets (including sidewalks) for the foreseeable uses of the public without regard to the motives and objectives of those traversing them. In City of Bloomington v. Bay (1867), 42 Ill. 503, a pedestrian was injured while strolling along a city sidewalk, and the supreme court discussed the duty of a municipality with regard to maintaining streets and sidewalks.

“[I]n a grant by the legislature of control over the streets of a city to the city authorities, control over the sidewalks passes to them, they being a part of the street. The charter of the city of Bloomington, giving control over the streets to the authorities of that city, also imposed upon them the duty of keeping them in repair, and, as sidewalks are a part of the streets, a like duty is imposed to keep them in repair.” (Emphasis added.) 42 Ill. at 507.

In City of Chicago v. Keefe (1885), 114 Ill. 222, 2 N.E. 267, a boy who was rolling a hoop along the sidewalk tripped on a loose plank, and subsequently died from injuries. The court held that “the duty of the city towards [the plaintiff] was precisely the same that it was towards a child of the same age and mental capacity, exercising the same degree of care, passing along the sidewalk without a hoop.” (114 Ill. at 228, 2 N.E. at 269.) “[Although a party may be doing an unlawful act at the time he is injured through the negligence of another, this will not prevent a recovery ***. [Citations.] Whether this child was guilty of contributive negligence, was a question of fact, to be determined by the jury ***.” 114 Ill. at 228, 2 N.E. at 269.

The attitude of the courts with regard to maintenance of streets and sidewalks in the late 19th and early 20th centuries is exemplified by the statement in Kohlhof v. City of Chicago (1901), 192 Ill. 249, 251, 61 N.E. 446, 446, that “[a]ll portions of a public street, from side to side and end to end, are for the public use in the appropriate and proper method.” In City of Rock Island v. Larkin (1907), 136 Ill. App. 579, 585, the court held that the designation of a street as a sidewalk for the use of pedestrians and a portion for a driveway does not deprive those who have occasion or desire to go from one to the other from doing so. In that case the plaintiff recovered for injuries sustained when she retrieved milk from a milk wagon parked in the street and tripped over a valve box protruding from an area beyond the sidewalk.

In Molway v. City of Chicago (1909), 239 Ill. 486, 88 N.E. 485, the court held that when highways are not restricted by their dedication or statute to some particular mode of use, they are open to all suitable methods of travel. The supreme court expanded on this idea in VanCleef v. City of Chicago (1909), 240 Ill. 318, 326, 88 N.E. 815, when it stated, “The liability of the city is, of course, not confined to travelers, but extends to a person stopping on the street to converse with another, or stopping to see a procession pass, or using the street for convenience or pleasure, and there are liabilities to abutting owners and to children playing upon the street.”

In City of Rock Island v. Larkin (1907), 136 Ill. App. 579, the court described the nexus between a municipality’s duty to maintain its streets and a person’s duty to exercise reasonable care for his/her own safety:

“A person using any portion of a street must use ordinary care for his own safety. What might be ordinary care for a foot passenger on the sidewalk would not be ordinary care for a passenger walking across the area between the sidewalk and the portion devoted to the use of vehicles. It is sufficient we think if the streets (which include sidewalks and bridges thereon) are in a reasonably safe condition for travel in the ordinary modes, by night as well as by day; and whether they are so or not is a practical question to be. determined in each case by its particular circumstances.” (136 Ill. App. at 585-86.)

This balancing of interests was discussed further in Boender v. City of Harvey (1911), 251 Ill. 228, 95 N.E. 1084:

“The object to be secured is reasonable safety for travel, considering the amount and kind of travel which may fairly be expected upon the particular road or street. A highway in the country need not be of the same character as a street in a large city.” 251 Ill. at 230-31, 95 N.E. at 1085.

Through the first half of this century the courts continued to follow the principle that a municipality’s duty is to exercise ordinary care to keep its streets reasonably safe for persons who exercise ordinary care. See Brennan v. City of Streator (1912), 256 Ill. 468, 100 N.E. 266; Storen v. City of Chicago (1940), 373 Ill. 530, 27 N.E.2d 53.

The preceding historical review, beginning with the 1855 supreme court decision Browning v. City of Springfield (1855), 17 Ill. 143, and leading up to the Tort Immunity Act, brings us to the point where the majority begins its opinion in this case. That is, with a discussion of the Tort Immunity Act. This is also the appropriate point to ask the next question in this analysis: what change, if any, did the Tort Immunity Act make in the responsibility of municipalities for persons injured due to defects in the streets?

Until the enactment of the Tort Immunity Act, the supreme court’s decisions espoused the traditional rule that municipalities have an obligation to maintain streets and sidewalks in a reasonably safe condition. “The *** Tort Immunity Act, which was enacted at least in part as a result of this court’s rejection of the principles underlying the sovereign immunity doctrine in Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11[, 163 N.E.2d 89], is in derogation of the common law action against governmental entities and specifies certain limitations on the liability of such bodies.” (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 412, 583 N.E.2d 538, 542; Curtis v. County of Cook (1983), 98 Ill. 2d 158, 164, 456 N.E.2d 116, 119; Helle v. Brush (1973), 53 Ill. 2d 405, 407, 292 N.E.2d 372, 374; Reynolds v. City of Tuscola (1971), 48 Ill. 2d 339, 342, 270 N.E.2d 415, 417.) The Tort Immunity Act explicitly states that its purpose “is to protect local public entities and public employees from liability arising from the operation of government. It grants only immunities and defenses.” (Ill. Rev. Stat. 1991, ch. 85, par. 1—101.1(a).) The Tort Immunity Act does not impose on a municipality any new duties but simply articulates common law principles that existed prior to the Act’s codification.

In recent years there have been numerous cases involving injuries caused to pedestrians by defects in the streets. The majority of these cases have been decided in favor of the defendant. The cases of Renk v. City of Chicago (1st Dist. 1992), No. 1—91—3205 (unpublished order under Supreme Court Rule 23), Mason v. City of Chicago (1st Dist. 1988), 173 Ill. App. 3d 330, 527 N.E.2d 572, and Vance v. City of Chicago (1st Dist. 1990), 199 Ill. App. 3d 652, 557 N.E.2d 494, concerned pedestrians who crossed the street outside the crosswalk and were injured due to a hole in the street. The Renk, Mason and Vance courts found that the pedestrians using the public streets as a walkway were not intended and permitted users of the street as required under the Tort Immunity Act. In Householder v. City of Bunker Hill (4th Dist. 1988), 172 Ill. App. 3d 1037, 527 N.E.2d 528, a pedestrian was injured when she fell into a manhole in the street while pushing an automobile. The court held that the city had no duty to protect the pedestrian from the danger of falling into the manhole in the street.

The cases are not all in the defendant’s favor, however. In Di Domenico v. Village of Romeoville (3d Dist. 1988), 171 Ill. App. 3d 293, 525 N.E.2d 242, the plaintiff was injured when he stepped into a pothole at the curbside while attempting to obtain items from the trunk of his legally parked car. The court held that the plaintiff did have a cause of action against the city based on the facts alleged.

“It is common knowledge that, unless parking is specifically prohibited on a street, the operators of vehicles regularly and customarily, both in business districts and residential areas, park their vehicles either parallel to or at an angle to the curb. It defies common sense to conclude that such local entities did not contemplate and intend that the operator of the vehicle along with passengers would use the street area around the parked vehicle for ingress and egress to and from their vehicle.” Di Domenico, 171 Ill. App. 3d at 295-96, 525 N.E.2d at 243.

The first district case of Torres v. City of Chicago (1991), 218 Ill. App. 3d 89, 578 N.E.2d 158, involves facts similar to those in Di Domenico. In Torres the plaintiff was injured when he fell in a pothole while removing groceries from the trunk of his legally parked car. The court held that the trial court erred in entering summary judgment for the defendant:

“We agree with plaintiff’s contention that because the City permits parking on Barry Street, pedestrian use of the immediate area around the parked vehicle for ingress and egress to and from the vehicle was intended and permitted within the meaning of the Tort Immunity Act.” (Torres, 218 Ill. App. 3d at 91, 578 N.E.2d at 159.)

Torres, as well as Renk v. City of Chicago discussed earlier, currently have petitions for leave to appeal pending before the Illinois Supreme Court. (Torres v. City of Chicago, No. 72380; Renk v. City of Chicago, No. 74453.) The supreme court has not ruled on the petitions for leave to appeal in either case.

In support of its position, the majority cites seven appellate court decisions which state that a municipality owes no duty to pedestrians who use the public streets, outside the crosswalk, as walkways. (Curatola v. Village of Niles (1992), 230 Ill. App. 3d 743, 598 N.E.2d 945; Ramirez v. City of Chicago (1991), 212 Ill. App. 3d 751, 571 N.E.2d 822; Greene v. City of Chicago (1991), 209 Ill. App. 3d 311, 567 N.E.2d 1357; Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, 556 N.E.2d 660; Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 527 N.E.2d 572; Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357; Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590.) Five of those decisions, each from the first district of the appellate court, involve pedestrians outside the crosswalk who either tripped or fell as a result of an alleged physical defect in the street. (Curatola, 230 Ill. App. 3d 743, 598 N.E.2d 945; Ramirez, 212 Ill. App. 3d 751, 571 N.E.2d 822; Greene, 209 Ill. App. 3d 311, 567 N.E.2d 1357; Vlahos, 198 Ill. App. 3d 911, 556 N.E.2d 660; Mason, 173 Ill. App. 3d 330, 527 N.E.2d 572.) Risner, also from the first district, involves a pedestrian who was struck by a bus while walking outside the crosswalk. Deren, from the fifth district, involves a pedestrian who was hit by a car. While these, and the other appellate court decisions discussed earlier are important, I think that at this point an examination of three supreme court decisions involving the Tort Immunity Act is in order.

In Curtis v. County of Cook (1983), 98 Ill. 2d 158, 456 N.E.2d 116, plaintiff sued the municipality for injuries sustained when the car in which she was a passenger went out of control and struck a signpost while speed-clocking. The court held that the Tort Immunity Act, which defines the scope of immunity for injuries arising out of the use of public property, did not support a finding that there was a statutory property-related duty to the plaintiff. The court held that the Act “evinces a legislative intent to extend a duty of care only to those persons by whom the local government intended the property to be used. As a passenger in a speed-clocking automobile, [plaintiff] cannot be said to fall within the class of motorists by whom defendant’s highways were intended to be used.” (98 Ill. 2d at 164-65.) The significance of Curtis is the court’s recognition that the Tort Immunity Act extends a duty of care “only to those persons by whom the local government intended the property to be used.” (98 Ill. 2d at 164-65.) The Curtis court declined to discuss the meaning of the word intended.

The supreme court interpreted the Tort Immunity Act again in Marshall v. City of Centralia (1991), 143 Ill. 2d 1, 570 N.E.2d 315, a case in which a minor was injured when he left the sidewalk to avoid a muddy condition and fell into an open sewer manhole in the parkway. In Marshall the court took up where it left off in Curtis, by delving into the meaning of the word intended as used in the Tort Immunity Act. As stated by the court:

“Intent, being a mental state, can rarely be discerned from direct proof and must ordinarily be inferred from the facts. [Citation.] After carefully considering the foregoing authorities, the arguments raised in the briefs, the facts in the record and the reasonable inferences to be drawn therefrom, we conclude that the plaintiff was an intended and permitted user of the parkway.” (Emphasis added.) (143 Ill. 2d at 9, 570 N.E.2d at 319.)

The Marshall court held that the city owed the plaintiff a duty to exercise ordinary care to maintain the parkway in a reasonably safe condition for the benefit of the plaintiff. (143 Ill. 2d at 9, 570 N.E.2d at 319.) The court noted that it found the comments in Jablonski v. City of Bay City (1929), 248 Mich. 306, 226 N.W. 865, a case involving a pedestrian injured in a parkway, to be particularly instructive:

“ ‘[T]he city cannot lawfully, by the mere provision of suitable passageways for pedestrians, maintain dangerous and unreasonable obstructions or conditions *** at places where people may reasonably be expected to go. *** Ik cannot confine its citizens in a traffic groove. It must take into account the natural inclination of children to run about in play and the perverse insistence of adults to cut corners and cross streets and grass plats instead of following precisely the beaten or provided path. Such departure from the sidewalk is not negligence per se in the individual, nor does it relieve the city of the duty to keep its streets in proper condition for travel at the places where people may reasonably be expected probably to walk.’ ” (Emphasis added.) Marshall, 143 Ill. 2d at 10, 570 N.E.2d at 319, quoting Jablonski, 248 Mich, at 309-10, 226 N.W. at 866.

It is clear that the supreme court in Marshall does not establish a bright-line test for determining municipal liability with regard to streets, parkways and sidewalks. On the contrary,' the court explains that intent must usually be inferred from the facts of the particular case. The court then quotes a passage from Jablonski which suggests that a municipality’s duty to maintain its streets may in certain situations extend to pedestrians. The majority in the case at bar does not mention Marshall but focuses instead on the First District Appellate Court cases and the supreme court case of Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 592 N.E.2d 1098.

The majority states that Wojdyla stands for the proposition that no duty attaches when pedestrians cross the street outside of a crosswalk. While the Wojdyla court may have found that no duty attached to the municipality under the facts of that case, Wojdyla involved very distinctive facts. The plaintiff was killed while attempting to walk across a six-lane highway where the posted speed limit was 40 miles per hour. The complaint alleged that the highway was inadequately illuminated and did not allege that there was a physical defect in the road itself. Plaintiff did not trip or fall in a defect in the road; he was struck by a car.

Wojdyla does not adopt a bright-line test that no duty attaches to pedestrians walking outside of crosswalks. In determining whether a plaintiff is an “intended and permitted” user of the municipality’s property, the municipality’s intent must ordinarily be inferred from the facts. (Marshall, 143 Ill. 2d at 9, 570 N.E.2d at 319.) In Wojdyla the court stated: “To determine the intended use of the property involved here, we need look no further than the property itself.” (Wojdyla, 148 Ill. 2d at 426, 592 N.E.2d at 1102.) In Wojdyla the facts are that the property was a six-lane highway, marked with lines and signs to guide vehicular traffic. The overhead streetlights were designed with the specific intent that they would light the way for fast-moving vehicles. It is significant that the Wojdyla court further found that the developer of modern highways designs for the benefit of automobiles and other vehicles, not for pedestrians. The court noted that modem highways are rarely designed with pedestrians in mind. (Wojdyla, 148 Ill. 2d at 424, 592 N.E.2d at 1101.) While highways may rarely be designed for the use of pedestrians, the court does not rule out liability in situations, such as subdivisions without sidewalks, where city streets may be used by pedestrians and vehicles alike.

I read Wojdyla with a sigh of relief, for in this age of modern highways designed solely for the purpose of vehicular traffic, it is comforting to know that the supreme court still recognizes that streets may at times be used for nonvehicular functions. St. Patrick’s, Casimir Pulaski’s, and Veteran’s Day parades, as well as summer street festivals come to mind, but these are infrequent. More frequent are the drivers of vehicles who exit from them on the street side every day. Add to these the school children and the elderly who use the streets as sidewalks in subdivisions where sidewalks are not provided and the citizens who live in the middle of the block and who never walk to the end of the block to use the crosswalk in order to visit their neighbor across the street, and it is obvious that city streets are routinely used by pedestrians. Some courts have allowed recovery to pedestrians injured in streets; more have not. In addition to the cases discussed earlier, see Jorgensen v. Whiteside (1992), 233 Ill. App. 3d 783, 599 N.E.2d 1009 (decision for the plaintiff), Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 523 N.E.2d 594 (decision for the defendant), Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 495 N.E.2d 1259 (decision for the defendant), and Palletdini v. City of East Peoria (1985), 134 Ill. App. 3d 345, 480 N.E.2d 530 (decision for the plaintiff).

In my judgment the duty question should not be based on whether the plaintiff is getting out of a lawfully parked car, or crossing a street within a crosswalk, or any other exception or limitation that has been utilized to either impose liability or to deny it. The duty of the municipality should be to provide sidewalks and parkways (and streets and alleys) that are in a reasonably safe condition. That was the duty imposed by the common law, and that duty is the same under the Tort Immunity Act. Once that duty is recognized, the question of whether the duty has been breached can be more properly analyzed. While a two- or three-inch difference in heights between sidewalk slabs might be considered a breach of the duty for sidewalks, that same difference might not be a breach if it was between two concrete slabs in the middle of a city street. Would anyone argue, however, that a city would not have a duty to barricade, fence, pave over, or otherwise do something about a 10-foot-wide pit filled with crocodiles, whether that pit was in a sidewalk, on the parkway beside the sidewalk, or in the middle of a street? The city’s duty is the same whether it is a sidewalk or a street, “to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 85, par. 3—102(a).) Neither the common law nor the Tort Immunity Act distinguishes between types of property, some courts have done so since the passage of the Act, and in my judgment, they are mistaken.

I could and perhaps should end the dissent at this time, but I want to address one further point because it may be the source of some of the difficulty in this area, and that is the construction of the “intended and permitted” language of section 3—102(a) of the Tort Immunity Act.

The Act provides:

“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 sufficient time prior to an injury to have taken measures to remedy or protect against such condition.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 85, par. 3—102(a).)

If we ignore the emphasized portions of the Act for a moment, it is clear that the remainder of the Act imposes the general common law duty of exercising ordinary care for the safety of others. What then is the concern of the emphasized portions of the Act? That language is concerned with to whom and under what circumstances the city owes its duty of ordinary care, and I submit that the confusion between these two is the source of some of the difficulty in this area.

There is no legislative history available for section 3—102(a), but a logical purpose of inserting “people whom the entity intended and permitted to use the property” would have been to differentiate between the common law classes of licensees, invitees, and trespassers which were still recognized at the time of the passage of the Act. A municipality has certain property such as streets and sidewalks which are intended to be used by all, i.e., the city would permit anyone to use these portions of its property. The city has other property, however, such as garages and offices, that it neither intends, nor would it permit, everyone to use. This limitation, however, is on the people who use the property, not on the use they make of it. It is important to note that “whom the city intended and permitted” (emphasis added) refers to and modifies “people.” See People v. Thomas (1970), 45 Ill. 2d 68, 256 N.E.2d 794.

The other limitation in section 3—102(a), “use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used,” deals with the foreseeability of the uses to which the property will be put. In my judgment, the courts have confused these two concepts. For example, Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357, affirmed a summary judgment for the defendant in a case involving a jaywalker struck by a Chicago Transit Authority bus:

“Here, as mentioned above, Adams Street is for the use of vehicular traffic, and jaywalkers are not intended or permitted users and not, therefore, users making use of the street in a foreseeable manner.” (150 Ill. App. 3d at 831, 502 N.E.2d at 360.)

The unfortunate mixture of the use and the intended and permitted users is apparent in the quotation. Who were the “people” in Risner'l Presumably, he was a citizen of Chicago. Did the city intend him to jaywalk? No. Did it permit jaywalking? No. But, does either of the latter two questions have anything to do with whether a citizen of Chicago is “intended and permitted to use the property,” the public streets of the city? No. Quite obviously, the plaintiff was both intended and permitted to use the street. What then is the problem? The problem the court apparently had was the manner in which he used the street, i.e., the fact that he was jaywalking. Again, while jaywalking may not be either intended or permitted conduct, the people who do the jaywalking are intended and permitted users of property. The jaywalking clearly brings the second emphasized limitation, “in a manner in which and at such times as it was reasonably foreseeable that it would be used,” into play. I am not interested in second-guessing every element of the first district’s analysis in Risner, but from what I have said earlier, it should be apparent that I would consider jaywalking in certain areas to be reasonably foreseeable conduct. I am more concerned, however, with Risner’s conclusion on the “intended and permitted” language of section 3—102(a), a conclusion which, while it may have been permitted, was not, in my judgment, intended by the legislature.

For the foregoing reasons, I respectfully dissent.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    STEVEN WEHDE et al., Plaintiffs-Appellants, v. THE REGIONAL TRANSPORTATION AUTHORITY, Commuter Rail Division (METRA), Defendant-Appellee.
    Second District
    No. 2—91—1333
    Opinion filed November 24, 1992.

      Christin J. Wehde, of Ingleside, and Voegtle & Lichter, of Libertyville (Clayton P. Voegtle, of counsel), for appellants.
    John W. Quinn, of Churchill, Baumgartner & Phillips, Ltd., of Grayslake (John Baumgartner, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiffs in this case seek the right of access to their respective parcels of land by claiming a prescriptive easement over a set of railroad tracks owned by the defendant, Commuter Rail Division of the Regional Transportation Authority (Metra). Plaintiffs Steven Wehde and Christin Wehde appeal from an order granting summary judgment in favor of Metra. The American National Bank and Trust Company of Waukegan, as trustee of land trust No. 983, coplaintiff, appeals from an order granting Metra’s motion for judgment at the close of plaintiffs’ case. For the following reasons, we reverse both rulings and remand.

Both parcels of land involved in this case are located in or near the Village of Ingleside, Lake County, Illinois. The first parcel (Trust Parcel) consists of approximately 33 acres and is situated directly north of the second parcel (Wehde Parcel). A set of railroad tracks running in a northwesterly direction abuts the northeast area of the Trust Parcel. A roadway runs off of Ingleside Avenue in a southwesterly direction north of the tracks, crosses the railroad tracks at the point they abut the Trust Parcel, and proceeds onto plaintiffs’ land.

When Klaas and Andrea Bleeker purchased the northern parcel from Catherine Graham in April 1954, there was allegedly a crossing of blacktop and ties over the railroad tracks. In May 1954, the Bleekers conveyed a 20-foot-wide strip of land along the eastern edge of the parcel back to Catherine Graham to provide access to the crossing from the parcel of land immediately south. In November 1966, the Bleekers sold the northern parcel, excluding the 20-foot-wide strip, to Howell and Mimi Howard. The Howards retained title to the property until 1973, when it was sold to Richard Sachse. In 1976, Sachse placed the parcel in trust with the American National Bank and Trust Company of Waukegan, plaintiff, as trustee for the benefit of Tom Lyon, Ray Western and himself.

The second parcel (Wehde Parcel), situated directly south of the Trust Parcel, consists of approximately 20 acres and the 20-foot-wide strip of land running north and south along the eastern edge of the Trust Parcel. The chain of title contained in the record reveals that Walter and Shirley Muehlfelder and Fred and Nerieda Muehlfelder purchased the land from Robert and Betty Graham, Mary and Vincent Lennon, and Donald and Audrey Graham in December 1958. The record also reveals that Catherine Graham conveyed the 20-foot-wide strip of land to the Muehlfelders in January 1959. In 1985, the Muehlfelders conveyed the entire southern parcel, including the 20-foot-wide strip, to Steven and Christin Wehde, plaintiffs.

Prior to the commencement of this litigation, plaintiffs believed the 20-foot strip reached the location of the crossing, since it had been used as a means of access by the owners and their predecessors. During the lawsuit, the Wehdes discovered that the description of the 20-foot strip conveyed to them by deed from the Muehlfelders did not actually touch the crossing. Thus, a written easement was prepared between the American National Bank and the Wehdes, connecting the 20-foot strip to the crossing. The easement provided that it shall run with the land and granted the Wehdes and future owners of the Wehde Parcel the right of ingress and egress for vehicular and other traffic used in connection with the use and enjoyment of the property.

All persons occupying the subject parcels allegedly utilized the subject crossing for ingress and egress. Because of the topography of the land, plaintiffs contend that the subject parcels are landlocked without use of the crossing. Although the exact date is unknown, the crossing was removed in approximately 1977 without notice to the property owners. When the Wehdes purchased the southern parcel and the 20-foot-wide strip in 1985, they allegedly made a demand upon the Soo Line Railroad, the owner of the railroad at that time, to reinstall and upgrade the crossing. Because there was no response, the Wehdes upgraded the crossing at their own expense in November 1987. The Wehdes allegedly utilized the crossing to access their property until October 1988, when they were notified by Metra, owner of the railroad, that the crossing was being removed. The Wehdes attempted to enjoin and restrain Metra from removing the crossing by filing a complaint for an emergency injunction on October 11, 1988. An emergency hearing was held, and a temporary restraining order was issued against Metra. However, Metra completed the removal of the crossing. Therefore, no hearing was held for a preliminary or permanent injunction.

On June 26, 1991, plaintiffs filed a third amended complaint seeking to establish their rights and liabilities concerning the crossing. In count I, plaintiffs asserted their right to a prescriptive easement over the crossing. In count II, plaintiffs alleged that Metra violated section 18c—7401 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, par. 18c— 7401) by removing the crossing without prior consent of the Illinois Commerce Commission (ICC). The relief plaintiffs sought on both counts was a declaration of their right to the easement and an order enjoining and restraining Metra from interfering with their use of the crossing. Count III contained a claim for fees and an injunction for violations of both the due process clause of the United States Constitution (U.S. Const., amend. XIV) and 42 U.S.C. §1983 (1988). In count IV, plaintiffs claimed damages for deprivation of access to their property and reimbursement for the costs of reconstructing the crossing which was wrongfully removed by Metra.

Metra moved for summary judgment on the basis that there was no genuine issue of material fact concerning plaintiffs’ right to a prescriptive easement for vehicular traffic. Plaintiffs responded by filing a countermotion for summary judgment. Metra objected to plaintiffs’ motion for summary judgment on the basis that plaintiffs attached the affidavits of several new witnesses and there was insufficient time for Metra to take their depositions before trial. On this basis, the trial court ordered plaintiffs’ motion for summary judgment stricken.

At this point, Metra’s motion for summary judgment remained pending. It was argued immediately before trial and was taken under advisement. At the end of the second day of trial, the court entered summary judgment in favor of Metra as to the Wehde Parcel and admitted all evidence and testimony adduced at trial as an offer of proof. Metra’s summary judgment motion as to the Trust Parcel was denied. At the close of plaintiffs’ case in chief, the trial court directed a finding in favor of Metra as to the Trust Parcel pursuant to Metra’s motion for judgment at the close of plaintiffs’ case in chief. Both the Wehdes and the American National Bank appealed from the court’s rulings.

I

In entering summary judgment in favor of Metra as to the Wehde Parcel and directing a finding in Metra’s favor as to the Trust Parcel, the trial court determined that “as a matter of law no easement may be established for a private crossing of the tracks of a railroad.” The court stated that it based its ruling on holding of Chicago, Burlington & Quincy R.R. Co. v. Malmgren (1922), 224 Ill. App. 93. The facts of Malmgren are similar to this case in that the defendant railroad company erected a fence to prevent the plaintiff from using the railroad right-of-way to obtain ingress and egress between his farm and the public highway. However, this is where the factual similarity ends. In Malmgren, the sole issue was whether the railroad was compelled by statute to maintain a crossing for the plaintiff because he was a proprietor of land adjoining a railroad. (Malmgren, 224 Ill. App. at 95.) The Malmgren court concluded that the applicable statute compelled railroads to maintain only farm crossings, defined by the court as crossings adjacent to land owned by proprietors engaged in agriculture or stock raising. (Malmgren, 224 Ill. App. at 96.) According to Malmgren, the statute involved would not compel a railroad to maintain a crossing for proprietors of remote farmlands who have acquired an easement from the proprietor of the land adjacent to the railroad right-of-way. Malmgren, 224 Ill. App. at 98.

In the present case, plaintiffs seek the right to a prescriptive easement over the railroad right-of-way. They are not asking Metra to maintain the crossing pursuant to statute as in Malmgren. Nevertheless, the court assimilated sections 18c—7401 and 18c—7504 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, pars. 18c—7401, 18c—7504) with the statute involved in Malmgren. Section 18c — 7401 of the Illinois Vehicle Code grants the authority to regulate public railroad crossings to the Illinois Commerce Commission. The relevant portions of the statute provide as follows:

“No public road, highway, or street shall hereafter be constructed across the track of any rail carrier at grade *** without having first secured the permission of the Commission; provided, that this Section shall not apply to the replacement of lawfully existing roads, highways and tracks. The Commission shall have the right to refuse its permission or to grant it upon such terms and conditions as it may prescribe. The Commission shall have power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, use and protection of each such crossing.
The Commission shall also have power, after a hearing, to require major alteration of or to abolish any crossing, heretofore or hereafter established, when in its opinion, the public safety requires such alteration or abolition, and *** to vacate and close that part of the highway on such crossing altered or abolished and cause barricades to be erected across such highway in such manner as to prevent the use of such crossing as a highway, when, in the opinion of the Commission, the public convenience served by the crossing in question is not such as to justify the further retention thereof.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 95½, par. 18c—7401(3).)

Section 18c — 7504, however, describes the railroad’s duty to maintain fences at crossings used by livestock, defined by Malmgren as “farm crossings.” (Malmgren, 224 Ill. App. at 96.) Since neither statute speaks of a private crossing, the trial court concluded that “there is no such thing *** with regard to railroads as a private crossing. There are only two kinds of crossings, farm crossings and public crossings.” The court went even further by concluding that “there is no ability as a matter of law to obtain a prescriptive easement for a private drive or private accessway to private property across a railroad right-of-way.”

First and foremost, the question of whether the crossing is characterized as public, private, or farm is a material issue of fact put in dispute sua sponte by the court. The classification of the subject crossing was not an issue raised by the pleadings. As such, it was improper to dispose of this issue at the summary judgment stage.

Furthermore, the trial court’s ruling was erroneous as a matter of law. In their brief, the Wehdes refer to and attach a report compiled by the Federal Railroad Administration (FRA) Office of Safety, a division of the United States Department of Transportation. The publication reports a total of 6,357 private railroad crossings in the State of Illinois for the 1988 calendar year. (Federal Railroad Administration, Office of Safety, U.S. Department- of Transportation, Rail-Highway Crossing Accident/Incident & Inventory Bulletin No. 11, at 45 (1989).) More recent statistics prepared by the FRA attached to the American National Bank’s brief report a total of 6,153 private crossings in the State of Illinois as of December 31, 1990. The Wehdes’ brief also includes portions of the second edition of a handbook prepared by the Federal Highway Administration (FHA). The handbook defines private crossings as “those that are on roadways not open to use by the public nor *** maintained by a public authority.” Further, included under typical examples of private crossings are “[rjesidential access crossings over which the occupants and their invitees reach private residences from another road, frequently a public road paralleling and adjacent to the railroad right-of-way.” Federal Highway Administration, U.S. Department of Transportation, Railroad-Highway Grade Crossing Handbook, at 213 (2d ed. 1986).

This statistical information was not presented in the proceedings below because the issue of the characterization of this crossing was not raised by the pleadings, but an issue put in dispute sua sponte. However, we may take notice of these publications as persuasive evidence. An appellate court may take judicial notice of factual matters not previously presented to the trial court when the facts are capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy. (Vulcan Materials Co. v. Bee Construction (1983), 96 Ill. 2d 159, 166; Boston v. Rockford Memorial Hospital (1986), 140 Ill. App. 3d 969, 972.) The statistics presented in plaintiffs’ briefs were compiled by the FHA and the FRA, divisions of the United States Department of Transportation. Federal records and statistics have been recognized as public records of which courts may take judicial notice. (See Newman v. Village of Hinsdale (N.D. Ill. 1984), 592 F. Supp. 1307, 1309 n.8, aff’d (7th Cir. 1985), 767 F.2d 925 (judicial notice taken of snowfall records prepared by the National Oceanic and Atmospheric Administration); Dietz v. Property Tax Appeal Board (1989), 191 Ill. App. 3d 468, 477 (judicial notice taken of Illinois Real Property Appraisal Manual, issued by the Department of Revenue, as a public record); In re Marriage of Aud (1986), 142 Ill. App. 3d 320, 325 (statistics prepared by the United States Bureau of Census were the proper subject of judicial notice).) Although the information presented in the Wehdes’ brief was not relied on by the parties or the court in the proceedings below, given the relevance of these facts, we elect to take judicial notice of the FRA and FHA publications.

Applicable case law further dispels the court’s findings that denied the very existence of private crossings as well as a plaintiff’s ability to obtain a prescriptive easement for a private drive across a railroad right-of-way. In Pearce v. Illinois Central Gulf R.R. Co. (1980), 89 Ill. App. 3d 22, 29-31, the court determined that the road at issue was a private crossing which abrogated the railroad’s statutory duty to maintain. In Martin v. Illinois Central Gulf R.R. (1991), 237 Ill. App. 3d 910, 917, the court categorized the crossing at issue as “private” because a petition to recognize it as a public crossing had not been filed with the Illinois Commerce Commission.

Although these cases do not concern prescriptive easements, they do recognize the existence of private crossings. We agree with Metra that section 18c—7401 of the Illinois Vehicle Code does not allow the ICC to create private railroad crossings. Rather, this section confers jurisdiction concerning public crossings to the ICC and sets forth a rail carrier’s duties with respect to public crossings in the interest of public safety. Contrary to the court’s determination, however, this enabling act does not cut off plaintiffs’ right to a private crossing as a means of access to their property.

In Smith v. Mervis (1976), 38 Ill. App. 3d 731, the plaintiff claimed a prescriptive easement over a strip of land owned by a railroad which connected two parcels of his farm property. On appeal, the court stated as follows:

“Respondents argue that one cannot acquire an easement by prescription on land which consists of a railroad right of way because that land is, in fact, publicly held property. Their contention is clearly erroneous. Illinois cases hold that a party can acquire a title by adverse possession to railroad land. (Illinois Central R.R. Co. v. Wakefield, 173 Ill. 564, 50 N.E. 1002.) If a party can obtain title by adverse possession against a railroad he can acquire the lesser interest of a prescriptive easement. (See dictum in Heater v. Chicago & Alton R.R. Co., 200 Ill. App. 331[, 335].) Hence, the same rules concerning prescriptive easements apply to a railroad as apply to any other landowner.” (Smith, 38 Ill. App. 3d at 732.)

Based on Smith, it is apparent that the court erred in concluding that it is impossible, as a matter of law, to obtain a prescriptive easement over a railroad right-of-way. Thus, it is necessary to determine whether the court erred in granting Metra’s motion for summary judgment as to the Wehde Parcel and in directing a finding in Metra’s favor as to the Trust Parcel.

II. STANDARD OF REVIEW

In granting Metra’s motion for summary judgment, the court stated that there were no contested questions of fact concerning the alleged easement by prescription over the railroad tracks. The court further stated that “the Plaintiffs, Steven Wehde and Christin Wehde neither individually nor as the owners of the real property described in their complaint are entitled to an easement for a crossing over the railroad tracks owned by the Defendant.” On appeal, the Wehdes contend that the trial court erred in entering summary judgment in favor of Metra on the basis that genuine issues of material fact do exist concerning the existence of plaintiffs’ easement by prescription.

The purpose of summary judgment is not to try the issues, but to determine whether any triable issues exist. (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 416; Quinton v. Kuffer (1991), 221 Ill. App. 3d 466, 470.) At the summary judgment stage, the plaintiff is not required to establish his case as he would at trial. Instead, the plaintiff must present some factual basis that would arguably . entitle him to a judgment in his favor. (West v. Deere & Co. (1991), 145 Ill. 2d 177, 182.) While the use of summary judgment is encouraged as an aid in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and, therefore, should be allowed only when the right of the moving party is clear and free of doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) A motion for summary judgment should be granted when the pleadings, depositions, and admissions on file, together with the affidavits, reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c); Balla v. Gambro, Inc. (1991), 145 Ill. 2d 492, 508.) An order granting summary judgment should be reversed if the evidence shows that a genuine issue of material fact exists or if the judgment was incorrect as a matter of law. (Quinton, 221 Ill. App. 3d at 471.) The trial court’s decision to grant or deny a motion for summary judgment is not discretionary. (Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824.) Rather, the reviewing court must apply the de novo standard of review and consider anew the facts and law related to the case. Shull, 223 Ill. App. 3d at 824; Quinton, 221 Ill. App. 3d at 471.

In granting Metra’s motion for judgment at the close of plaintiff’s case in chief, the court stated that “the Plaintiff, American National Bank and Trust *** has failed to introduce evidence sufficient to establish that it is entitled to an easement for either a farm crossing or an authorized public crossing over the railroad tracks of the Defendant.” On appeal, the American National Bank contends that the court’s ruling was improper.

In nonjury cases, the defendant may, at the close of plaintiff’s case, move for a finding or judgment in his favor. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1110.) In ruling on such a motion, the trial court must follow a two-step procedure. First, the court must determine whether the plaintiff has sustained its burden of proving a prima facie case by presenting at least some evidence on every element essential to the underlying cause of action. (Bruss v. Klein (1991), 210 Ill. App. 3d 72, 78; Drew v. Whittington (1987), 158 Ill. App. 3d 387, 391.) If a prima facie case has not been established, the court should grant defendant’s motion and enter judgment in his favor. Heller v. Jonathan Investments, Inc. (1986), 113 Ill. 2d 60, 71.

If, however, the plaintiff has made out a prima facie case, the trial judge must weigh the plaintiff’s evidence. Contrary to the Pedrick standard governing directed verdicts (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510), the court is not to view the evidence in the light most favorable to the plaintiff. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154.) Instead, the court must consider all of the evidence, including evidence favorable to the defendant, pass on the credibility of the witnesses, draw reasonable inferences from the testimony, and consider the general weight and quality of the evidence. (Kokinis, 81 Ill. 2d at 154; Melicharek v. Carson Pirie Scott & Co. (1991), 215 Ill. App. 3d 873, 879.) After weighing the quality of the evidence, the court must determine, applying the standard of proof required for the underlying cause, whether sufficient proof remains to establish the plaintiff’s prima facie case. (Drew, 158 Ill. App. 3d at 391.) If the trial court finds that the plaintiff’s evidence is insufficient to satisfy the required burden of proof, the court should grant defendant’s motion and enter a judgment dismissing the action. (Bruss, 210 Ill. App. 3d at 78.) However, the reviewing court will not reverse the trial court’s ruling on appeal unless it is contrary to the manifest weight of the evidence. In re Doyle (1991), 144 Ill. 2d 451, 470; Kokinis, 81 Ill. 2d at 154.

We are asked to review the propriety of the court’s judgment in favor of Metra at the close of plaintiffs’ case in chief as to the Trust Parcel. The issue is whether the court’s determination that the American National Bank and Trust failed to sustain its burden of proving that it acquired a prescriptive easement is against the manifest weight of the evidence. Because the court entered summary judgment in favor of Metra as to the Wehde Parcel, the issue is whether the pleadings, depositions, and admissions on file, together with the affidavits, reveal that there is a genuine issue of material fact concerning the Wehdes’ claim that they have acquired a prescriptive easement over the subject crossing. Although we must apply a different standard of review to each ruling, the court expressly stated that it considered the evidence admitted at trial as an offer of proof in entering summary judgment as to the Wehde Parcel. Consequently, we will consider the evidence presented in support of plaintiffs’ case in ruling on both issues.

III

To establish an easement by prescription, the claimant must prove that the use of the land was hostile or adverse, uninterrupted, exclusive, continuous, and under a claim or title inconsistent with that of the true owner. (Page v. Bloom (1991), 223 Ill. App. 3d 18, 20; Weihl v. Wagner (1991), 210 Ill. App. 3d 894, 895; Chicago Steel Rule Die & Fabricators Co. v. Malan Construction Co. (1990), 200 Ill. App. 3d 701, 705-06.) These elements must have shared a concurrent existence for a continuous period of 20 years. Ill. Rev. Stat. 1989, ch. 110, par. 13—101; Light v. Steward (1984), 128 Ill. App. 3d 587, 593-94.

When there is privity between the users of the property, periods of use may be tacked together in order to satisfy the statutory period. (Light, 128 Ill. App. 3d at 594; Healy v. Roberts (1982), 109 Ill. App. 3d 577, 579.) The requisite of privity exists when the latter user has succeeded to the interest of the earlier user by inter vivos conveyance, by descent, by devise, or by involuntary conveyance. Light, 128 Ill. App. 3d at 594.

In this case, the record reflects the following inter vivos conveyances of the Trust Parcel:

1954—quitclaim deed from Catherine Graham to Klaas and Andrea Bleeker in joint tenancy;
1954—quitclaim deed from the Bleekers conveying the 20-foot strip to Catherine Graham;
1966—warranty deed from the Bleekers to Howell and Mimi Howard in joint tenancy; and
1976—warranty deed from the Howards to the American National Bank and Trust Company of Waukegan as trustee.

Likewise, the record reflects the following inter vivos and involuntary conveyances of the Wehde Parcel:

1958—warranty deed from Robert and Betty Graham, Mary and Vincent Lennon, and Donald and Audrey Graham conveying a one-half interest to Walter and Shirley Muehlfelder in joint tenancy and a one-half interest to Fred and Nerieda Muehlfelder in joint tenancy;
1959—quitclaim deed from Catherine Graham conveying the 20-foot strip to the Muehlfelders in joint tenancy;
Prior to 1985—Fred Muehlfelder died, passing an undivided one-half interest in the property to his wife, Nerieda Muehlfelder; and
1985—warranty deed from Nerieda Muehlfelder and Walter and Shirley Muehlfelder conveying the southern parcel and the 20-foot strip to Steven and Christin Wehde in joint tenancy.

The record reflects privity was established in each conveyance by the predecessors in ownership to both the Wehde Parcel and the Trust Parcel. Thus, we find that the periods of use of the owners of the individual parcels may be tacked together to satisfy the statutory period.

To meet the requirement of adverse use, the claimant must show that the use of the property or right-of-way was with the knowledge and acquiescence of the owner but without his permission. (Deboe v. Flick (1988), 172 Ill. App. 3d 673, 675.) While the burden of proof is on the party claiming the prescriptive right, the law recognizes rebut-table presumptions regarding the requirement of adversity. Where a right-of-way has been used in an open, uninterrupted, continuous and exclusive manner for more than 20 years and the origin of the claimed easement is not shown, there is a rebuttable presumption of adversity. (Light, 128 Ill. App. 3d at 596.) If the presumption arises, the burden of proof shifts to the defendant to present factual support for the claim that a prescriptive easement did not arise. However, the issue of whether there was adverse use of a way under a claim of right for a period of 20 years is almost wholly a question of fact. As such, where there is conflicting testimony in a bench trial, the findings of the court will not be disturbed on review unless they are against the manifest weight of the evidence. Page, 223 Ill. App. 3d at 21.

In this case, neither party presented any evidence indicating the origin of the crossing. The earliest time to which the crossing was traced was through the testimony of Stewart Hoehne, chief of the Fox Lake fire department. Hoehne testified that he utilized the crossing for travel to and from work beginning in approximately 1943. At that time, Hoehne recalled that there were boards between the tracks allowing vehicles to drive across. Hoehne’s testimony is corroborated by that of Gary James, a graphic supervisor for the Lake County Department of Planning, Zoning and Environmental Quality, who presented an aerial photograph dated July 20, 1939, which depicted the existence of the crossing.

The next point in time to which the crossing was traced was 1954, when Klaas and Andrea Bleeker purchased the Trust Parcel from Catherine Graham. Mrs. Bleeker stated that when she purchased the property, a road existed adjacent to Ingleside Avenue to the north side of the railroad right-of-way and crossed the tracks onto their land. She further stated that, at the time she and her husband were negotiating to purchase the property, the crossing consisted of deteriorating asphalt between the tracks and next to the embankment. The roadway on each side consisted of stone and gravel mixed with dirt. Upon their purchase, the Bleekers upgraded the crossing. Mrs. Bleeker testified that the only access to the house they built on the property was over the crossing because the south and west portions of the parcel consisted of swamplands which were frequently under water. Mrs. Bleeker stated that her family and friends always used the crossing for ingress and egress, without permission.

Mrs. Bleeker’s testimony was reiterated in an affidavit by her husband, Klaas Bleeker, who recalled the crossing of asphalt and dirt both prior to and at the time of their purchase. The Bleekers’ son, Bruce Bleeker, who was 17 years old when his parents purchased the property, also recalled the crossing in his affidavit. He described the crossing as a mixture of gravel, asphalt and dirt, which was deteriorating and in need of repair. He reiterated that his parents upgraded the crossing after their purchase by loading gravel into the crevices and that they used the crossing for access to their property.

Howell and Mimi Howard purchased the Trust Parcel from the Bleekers in 1966. The Howards stated by affidavit that the railroad crossing was the only means of access to their property and that they used it without permission, as did all of their visitors. Howell Howard also recalled a crossbuck railroad crossing sign posted on the roadway at the junction of the crossing and Ingleside Avenue and painted whistle boards located in both directions on the track.

The next owner of the Trust Parcel was Richard Sachse, who purchased the property from the Howards in 1973. Consistent with the testimony of his predecessors, Sachse testified that the railroad crossing was the only means of access to the property.

Walter Muehlfelder purchased the Wehde Parcel from various members of the Graham family in December 1958. He described the parcel as approximately 20 acres, 13 of which were wooded highlands. At the time of purchase, there was a path running from the crossing along the eastern border of the Trust Parcel and ending on his property. Muehlfelder stated that he understood that the crossing and the path were the sole means of access to the property because the south and west borders of the parcel were swamplands and there was no right of access through any of the privately owned property directly east. The record reflects that in January 1959 Catherine Graham conveyed a strip of land 1,100 feet long by 20 feet wide along the eastern edge of the Trust Parcel to the Muehlfelders. Muehlfelder testified that his family and their guests used the crossing and strip for ingress and egress during their entire period of ownership. They utilized the parcel for hunting and target shooting and allowed the Boy Scouts to use the property for camping.

Steven and Christin Wehde purchased the southern parcel and the 20-foot strip from the Muehlfelders in 1985. Christin Wehde testified that, at the time of her purchase, the crossing area consisted of gravel and stone between the tracks accompanied by a one-lane gravel road on each side of the railroad tracks which was suitable only for large-tired vehicles. It was her understanding that the means of access to their parcel was across the railroad tracks and the 20-foot strip. Both Steven and Christin Wehde testified that they improved the crossing by inserting gravel between the tracks, bolting timbers on each side of the rail, placing gravel on the grade, and clearing the road on the 20-foot strip. The Wehdes utilized the subject crossing and the 20-foot strip for access to their property on a daily basis. They further testified that this crossing was removed by Metra in 1988.

Finally, the plaintiffs presented the testimony of Gary Lobdell, a photogrammetrist for the Sidwell Company for 12 years who was previously employed at Chicago Aerial Survey, Inc. As part of his employment, he examines aerial photographs and makes measurements from these photographs. Lobdell was not permitted to give expert testimony. He did, however, identify aerial photographs of the subject properties dated 1958, 1964, and 1970. Lobdell testified that the photographs depicted the subject crossing and a roadway coming off Ingleside Avenue in a southwesterly direction toward the north side of the railroad tracks and continuing on the south side of the railroad right-of-way. Lobdell also identified a topographical survey of the subject properties dated 1978, which did not indicate the existence of the crossing.

Neither party presented evidence indicating the origin of the crossing. Instead, the uncontroverted affidavits, testimony and exhibits of the plaintiffs establish the existence of the crossing as early as 1939. Further, the owners of the Trust Parcel (the Bleekers (1954-1966), the Howards (1966-1973), and Richard Sachse (1973-present)) all testified that they utilized the crossing without permission as the sole means of access to their property during their entire period of ownership. Likewise, the owners of the Wehde Parcel (the Muehlfelders (1958-1985) and the Wehdes (1985-present)) testified that they used the crossing and the 20-foot strip without permission as the sole means of access to their parcel until it was torn out by Metra. In the absence of any counteraffidavits or other evidence filed by Metra rebutting plaintiffs’ claim of a prescriptive easement, we find the undisputed evidence indicates that use of the land by owners of both the Wehde Parcel and the Trust Parcel was hostile or adverse, open, exclusive, and under a claim of right.

Besides the requirement that the use be adverse, the doctrine of prescription also requires that the use be continuous and uninterrupted. For a use to be continuous, it is critical that there be no break in the attitude of mind of the claimant or the claimant’s predecessor which would amount to a recognition of subordination to the servient owner’s consent or an abandonment of the use in response to the servient owner’s demand. (Roller v. Logan Landfill, Inc. (1974), 16 Ill. App. 3d 1046, 1052.) In order for a use to be uninterrupted, there must be no acts by the servient owner which succeed in causing a discontinuance of the use. When a discontinuance by the servient owner is effected, the running of the statutory period is stopped. (Roller, 16 Ill. App. 3d at 1053.) However, not every slight or occasional use of the land, even by the owner, will constitute an interruption. It must appear that the claimant of the right-of-way has acquiesced in the interruption in such manner as to make the subsequent use merely permissive. Obstructing the right-of-way will not divest the claimant of its right unless the obstruction is submitted to for such a period of time as to raise a fair presumption of abandonment. Verh v. Morris (1951), 410 Ill. 206, 212.

The evidence of an interruption was elicited through the testimony of Stewart Hoehne, the fire chief for the Village of Fox Lake, who recalled that late in 1977 the fire department was unable to drive its trucks across the tracks to reach a fire on the Trust Parcel because the crossing was removed. Gary Lobdell also testified that a topographical survey dated 1978 did not indicate the existence of the crossing. However, Richard Sachse, beneficiary of the Trust Parcel, testified that a fire in 1977 burned the cabin on his parcel to the ground. When he investigated the damage approximately one week later, the crossing had been torn out by a bulldozer, even though he recalled its existence approximately V-k months prior to the fire. Sachse further stated that, shortly after the fire, he attempted to have the crossing reinstalled by talking with personnel at the Milwaukee Road Railroad Company.

To defeat Metra’s summary judgment motion, the Wehdes were required to show that their claim of a prescriptive easement was supported by some factual basis that would arguably entitle them to a judgment in their favor. (West, 145 Ill. 2d at 182.) In support of their claim, plaintiffs presented both affidavits and testimony of the present owners and their predecessors stating their recollection and use of the crossing. Metra contends that the crossing was used with permission, thereby negating the essential element of adversity. However, Metra failed to present any evidence to this effect. Although Metra did present evidence that the crossing was torn down in approximately 1977 in support of its contention that this action stopped the running of the statutory period, the record is devoid of evidence indicating what party tore down the crossing and any reason for such action. Without more, we cannot conclude that Metra claimed the property in such a way that subsequent use of the crossing was permissive. Accordingly, viewing the pleadings, depositions, and admissions on file, together with the affidavits and evidence admitted as an offer of proof in the light most favorable to the nonmoving Wehdes, we find that a genuine issue of material fact exists concerning the adverse, open, notorious, and continuous use of the crossing by the owners of the Wehde Parcel for the statutory period.

We further find, after considering all of the evidence, passing on the credibility of the witnesses, and drawing reasonable inferences from the testimony presented, that the American National Bank has sustained its burden of proving that use of the crossing by the beneficiaries of the Trust Parcel and their predecessors was hostile or adverse, open and notorious, and uninterrupted for the statutory period. Thus, the American National Bank has sustained its burden of completing its prima facie case. Since the record is completely devoid of evidence concerning the origin of the crossing, a rebuttable presumption of adversity has arisen. At this point, Metra should have been required to present evidence rebutting each and every element of plaintiffs’ prima facie case. Accordingly, we find the judgment of the circuit court was against the manifest weight of the evidence.

IV

Plaintiffs next contend that the court erred in striking their motion for summary judgment. On October 11, 1991, plaintiffs filed a motion for summary judgment. Metra objected to the motion because it allegedly attached affidavits of witnesses previously undisclosed and Metra had insufficient time to take their depositions before the scheduled trial date. Metra also objected to plaintiffs’ motion on the basis that some' of the affidavits attached to the motion contradicted allegations made in discovery depositions of the same witnesses. Accordingly, the court ordered plaintiffs’ entire motion stricken.

Section 2—1003 of the Code of Civil Procedure requires a party to furnish the names or addresses of expert witnesses upon motion by any party. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1003.) The motion must be made “in sufficient time in advance of trial so as to insure a fair and equitable preparation of the case by all parties.” Ill. Rev. Stat. 1989, ch. 110, par. 2—1003(c).

Metra specifically objects to the affidavits of Bruce Bleeker, Gary Lobdell, Jack Kiesgan and Elaine Barkoulies as undisclosed. However, the affidavits of Bruce Bleeker and Jack Kiesgan reveal that these persons were not retained to render expert testimony. Thus, section 2—1003 does not require disclosure, even upon motion. Moreover, the record reveals that Elaine Barkoulies was disclosed as early as August 20, 1990, when she mailed a verification to the Wehdes that aerial photographs of the crossing dated 1958 and 1964 were not retouched or otherwise altered. The record further reveals that Gary Lobdell, the remaining witness, was disclosed at the pretrial conference on August 30, 1991. Thus, we find Metra’s objection meritless.

Likewise, Metra’s objection to the substance of the affidavits of Stuart Hoehne and Klaas Bleeker is equally meritless. Metra contends that the affidavits of Hoehne and Bleeker were improper because their discovery depositions contradicted the substance of their affidavits. However, a witness’ affidavit may expand and clarify opinions, estimates, inferences, and uncertain summary statements made in a prior deposition as long as the affidavit does not contradict deliberate testimony relating to concrete facts. (Schmall v. Village of Addison (1988), 171 Ill. App. 3d 344, 348.) Bleeker’s counteraffidavit expanded and clarified his deposition in that he recalled the crossing at the time he purchased the property because his memory was refreshed by conversations "with his son. Similarly, Hoehne recalled the crossing in both his deposition and affidavit. His affidavit merely expanded on the time frames during which he recalled using the crossing and is allowable.

Regardless of our ruling that the substance of the affidavits was proper and the disclosure of the witnesses was timely, the court erred in ordering plaintiffs’ entire motion stricken. The appropriate relief should have been to strike the affidavits which violated disclosure requirements or which substantively contradicted the affiant’s deposition. On this basis alone, the court erred in striking plaintiffs’ entire motion for summary judgment.

V

Next, plaintiffs contend that the court abused its discretion in barring the expert testimony of Gary Lobdell. Plaintiffs’ trial counsel disclosed the name of his proposed expert witness, Robert Bielecki, more than 60 days prior to trial. However, Bielecki was no longer willing to testify in this case because of other commitments. Thereafter, Gary Lobdell was retained as an expert to replace Bielecki. Plaintiffs' counsel informed the court and defense counsel of the new expert the next day, which was the date scheduled for a pretrial conference. At this time, plaintiffs moved for a continuance to allow use of the new expert and remain within the requirements of Supreme Court Rule 220 (134 Ill. 2d R. 220(b)) because only 52 days remained before the scheduled trial date. The motion was denied. Gary Lobdell did testify at trial, but was foreclosed from rendering expert opinions. Metra contends that plaintiffs failed to make an offer of proof regarding Lobdell’s proposed testimony, thereby failing to preserve their objection to his exclusion. However, such an offer is not necessary when the trial judge understands the character of the evidence and the nature of the objection to it. Lindley v. St. Mary’s Hospital (1980), 85 Ill. App. 3d 559, 566-67.

Supreme Court Rule 220(b)(1) requires disclosure of a witness retained as an expert to render an opinion at trial “either within 90 days after the substance of the expert’s opinion first becomes known to that party or his counsel or, if the substance of the expert’s opinion is then known, at the first pretrial conference in the case, whichever is later.” (134 Ill. 2d R. 220(b)(1).) The rule also requires the trial court to set a schedule of dates for disclosure of any experts not previously disclosed. The trial court must choose dates which will ensure that discovery of all experts is completed at least 60 days prior to trial. 134 Ill. 2d R. 220(b)(1).

Some factors courts consider in determining whether an expert should be excluded from testifying include any surprise and prejudice to the opposing party, the nature of the proposed testimony, the timeliness of the objection to the testimony and whether the omission of the witness’ name was intentional or inadvertent. (See Kubian v. Labinsky (1988), 178 Ill. App. 3d 191.) In this case, the trial court scheduled the final date for disclosure of experts on June 30, 1991, more than 60 days prior to the scheduled trial date of October 21, 1991. Plaintiffs complied with this time limit by disclosing the name of their initial expert, Robert Bielecki. However, Bielecki subsequently refused to testify. Plaintiffs responded to this difficulty by retaining Gary Lob-dell as a substitute, promptly informing opposing counsel and the court, and moving for a continuance on August 30, 1991, the date of the first pretrial conference.

It is true that the June 30, 1991, time limit for disclosure of experts set by the trial court on its own motion prior to the first pretrial conference had expired. According to the express terms of Rule 220, however, plaintiffs were required to disclose the identity of any expert witness retained to render an opinion at trial on the later of 90 days after the substance of the expert’s opinion first becomes known to the party, or his attorney, or at the first pretrial conference. Thus, scheduling the first pretrial conference 52 days prior to trial made it impossible for plaintiffs to comply with this provision and the time limits previously set by the trial court.

It is clear that plaintiffs acted in good faith in retaining a new expert. However, they were foreclosed from eliciting any expert opinions. Thus, Lobdell testified as a lay witness, which carried no weight in this instance. This resulted in substantial prejudice to plaintiffs through no fault of their own. It was within the court’s discretion to facilitate a fair trial and grant a very short continuance to allow discovery of this new expert and remain within the confines of Supreme Court Rule 220. Moreover, the record fails to indicate that Metra asserted any prejudice of surprise by plaintiffs’ proposed use of Lobdell as an expert, other than the fact that the defense wished to take Lob-dell’s deposition, and only 52 days remained prior to trial, which placed the expert outside the 60-day requirement of Rule 220.

We previously interpreted Rule 220 as follows:

“The purpose of the rule is to facilitate trial preparation by eliminating last-minute disclosure of expert witnesses. [Citations.] The rule was designed to eliminate this evil by establishing a uniform, but not inflexible, framework regarding the timely revelation of the identity of expert witnesses and the subject matter of their testimony. [Citations.] The rule requires that parties act in good faith to ascertain the identity of expert "witnesses they reasonably anticipate using.” (Vallejo v. Mercado (1991), 220 Ill. App. 3d 1, 7-8.)

This passage emphasizes that the leading purpose of Rule 220 is to promote the goal of discovery. The punitive nature of the rule is secondary to this goal. Consistent with the spirit of Rule 220 and our interpretation in Vallejo, we find that the court abused its discretion by failing to grant a continuance to allow Gary Lobdell to give expert testimony and remain within the confines of Rule 220.

VI

Lastly, plaintiffs contend that their constitutional right to a jury trial was denied when their jury demand was stricken. Plaintiffs commenced the instant case by filing a complaint for an emergency injunction on October 11, 1988. On June 26, 1991, plaintiffs filed a third amended complaint which contained additional counts for damages and a jury demand. Prior to that time, the action was solely one in equity since plaintiffs sought injunctive relief. Pursuant to motion by Metra, the court ordered plaintiffs’ jury demand stricken.

A plaintiff desiring a trial by jury must file a demand with the clerk at the time the action is commenced; otherwise the party waives a jury. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1105.) Although plaintiffs seeking equitable relief are not entitled to a trial by jury, they may petition the court for a jury. Ill. Rev. Stat. 1989, ch. 110, par. 2—1105.

In this case, plaintiffs amended their complaint with additional counts for damages well after the date of the initial filing and included their first jury demand at this time. According to section 2—1105 of the Code of Civil Procedure, the jury demand must have been filed at the time the action was commenced. In some circumstances, filing an amended complaint adding damage counts to what was previously an equitable cause of action might involve good cause for filing a.late jury demand. However, plaintiffs failed to present any explanation or citation to case law for the proposition that filing an amended complaint constitutes good cause for a late filing. In the absence of an attempt to explain the failure to include the matter in the original complaint, we find that the court did not abuse its discretion in striking plaintiffs’ jury demand.

VII

As an affirmative defense, Metra asserts that plaintiffs’ right to a prescriptive easement over the subject crossing was terminated by a judgment in a prior proceeding. On September 4, 1987, the United States District Court entered an order in cause 85—C—05969, referred to in such order as “Condemnation Proceedings.” The parties to the instant case stipulate that Metra acquired title to a railroad right-of-way, including the crossing at issue, pursuant to the judgment order and accompanying stipulation entered between the Regional Transportation Authority (RTA), CMC Real Estate Corporation, and the Commuter Rail Division of the Regional Transportation Authority (Metra). However, they “do not stipulate to the order’s meaning or legal effect.” The trial court indicated that “generally the cases suggest that a consent decree is a settlement agreement between the parties and not binding on subsequent courts because it is not a judicial determination.” Nevertheless, the trial court failed to rule on this issue. Metra asserts in its affirmative defense that plaintiffs are bound by the settlement agreement/stipulation and have thereby waived the right to claim a prescriptive easement over the subject crossing.

We find the settlement agreement at issue was the equivalent of a consent decree wherein Metra acquired title to the railroad right-of-way by entering into an agreement for compensation and other terms with the RTA and the CMC Real Estate Corporation pursuant to bankruptcy proceedings of the Chicago, Milwaukee, St. Paul and Pacific Railroad Company, case No. 77—B—8999. Further support for our finding exists in paragraph 11.9 of the stipulation itself, which states that the agreement “shall be deemed a contract made under the laws of the State of Illinois and for all purposes shall be governed by, construed, interpreted, and enforced according to the laws of the State of Illinois.”

A consent decree is merely a recitation of a settlement agreement between the parties to the litigation. (Village of Mundelein v. Village of Long Grove (1991), 219 Ill. App. 3d 853, 862.) It is not a judicial determination of their rights. Accordingly, the law of contracts controls its interpretation. Flora Bank & Trust v. Czyzewski (1991), 222 Ill. App. 3d 382, 388.

In this case, Metra asserts that plaintiffs are bound by the settlement agreement because it stated that “all interested parties are before this court and have waived a jury” and contained the following language:

“[A]side from the exceptions and reservations provided in the Stipulation, all right, title and interests of CMC, Chicago Milwaukee Corporation, and all Unknown Owners in the Acquired Property is hereby vested in the RTA as set forth in the Stipulation^] ”

However, an enforceable contract requires a meeting of the minds or mutual assent by the contracting parties to its terms and conditions. (Academy Chicago Publishers v. Cheever (1991), 144 Ill. 2d 24, 30.) Thus, it follows that a contract may be enforced only against the parties who have agreed to its terms. The settlement agreement, which we have deemed a consent judgment to be interpreted as a contract, was entered into between CMC Real Estate Corporation, the RTA, and Metra. Plaintiffs were not parties to this agreement and are not bound by its terms.

Assuming arguendo the settlement agreement was entered as the judgment of the court in condemnation, plaintiffs’ right to a prescriptive easement is unaffected. Both Illinois and Federal rules of procedure allow persons interested in such a lawsuit, whose names are unknown, to be made party defendants. (Ill. Rev. Stat. 1989, ch. 110, pars. 7-102, 7-114; Fed. R. Civ. P. 71A(d)(3)(ii).) In both instances, an affidavit or certificate must be filed by the plaintiffs which states that the names of the persons they wish to join are unknown and cannot be ascertained upon diligent inquiry. (Ill. Rev. Stat. 1989, ch. 110, par. 2—413; Fed. R. Civ. P. 71A(d)(3)(ii).) Next, process may issue and publication made against those persons by the name and description so given. Ill. Rev. Stat. 1989, ch. 110, pars. 2—206, 2—413; Fed. R. Civ. P. 71A(d)(3)(ii).

In this case, Metra failed to present any evidence sufficient to establish proper notice to any “unknown owners,” including plaintiffs in this case. The record contains the court’s order adopting the settlement agreement between the parties but is wholly devoid of any evidence revealing that proper service of process and publication was made against any “unknown owners.” For these reasons, we find that Metra failed to present evidence sufficient to establish its affirmative defense that plaintiffs’ right to a prescriptive easement was abrogated by the settlement agreement entered in the United States District Court, cause number 85—C—05969.

For the foregoing reasons, we reverse the judgment of the circuit court of Lake County and remand the cause to the trial court for further proceedings in conformance with this opinion.

Reversed and remanded.

INGLIS, P.J., and DUNN, J., concur.