author: JUSTICE GORDON

text:
      In re F.R., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. F.R., a Minor, Respondent-Appellant).
    First District (5th Division)
    No. 1-88-2159
    Opinion filed January 18, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Stephen L. Richards, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Sharon Jefferson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Respondent, the minor F.R., was charged with possession of 3.95 grams of Cannabis sativa in violation of section 4 of the Cannabis Control Act (Ill. Rev. Stat. 1987, ch. 56½, par. 704). The respondent filed a pretrial motion to quash arrest and suppress evidence, which was denied. Following an adjudicatory hearing, the trial court entered a finding of delinquency. The respondent was declared a ward of the court and was placed on probation for 18 months, with 30 days in custody. On appeal, respondent contends that the trial court erred in denying his motion to quash arrest and suppress evidence. For the following reasons, we reverse the finding of delinquency.

Facts

At the hearing on the motion to suppress, respondent testified on his own behalf. He said that on March 7, 1988, at approximately 10 p.m., he was standing at the intersection of Division and Winchester Streets in Chicago when two police officers approached him. He testified that the officers asked him why he was standing there, and then searched his pocket and removed something. On cross-examination, respondent said he knew that a lot of drug dealings occur on that corner. He denied that when the police stopped him, he had walked up to a car that had stopped at the intersection.

Officer Ralph Vega, testifying on behalf of the State, said that the intersection of Division and Winchester is a known drug trafficking area and that he has observed drug transactions occurring at that intersection approximately 25 times. He testified that in the six months before the hearing, he had made about a dozen arrests there. He explained that, from his experience, these transactions involve a car that pulls up to a certain comer. The driver of that car then motions to a person standing at the corner, after which that person approaches the car and the driver asks him “for an amount.” Then, the person gives the driver a package and money is exchanged.

Officer Vega further testified that he was assigned to the intersection of Division and Winchester on March 7, 1988. He and his partner arrived at the intersection at 10:10 p.m. They were in uniform and driving a marked car. The officer testified that he observed the respondent on the corner to his left and a parked car with someone in the driver’s seat on the corner to his right. The driver of the car waved to respondent, and respondent walked over to the car and began talking to him. Officer Vega testified that he and his partner were then right by the corner, approximately 25 feet from the car, at which time respondent saw them and immediately walked away from the vehicle. The officers then exited their car and stopped him. Officer Vega testified that they asked respondent what he was doing by the car, but he did not answer. Thereafter, a pat search was conducted, at which time, the officer testified, he felt a bulge in the front of respondent’s pants, close to the belly button. The officer then removed a crumpled up potato chip bag from inside respondent’s pants. Inside the potato chip bag were four smaller bags that contained a crushed green plant matter, later found to be marijuana.

Upon cross-examination, Officer Vega said he did not see respondent exchange anything with the car’s driver. He testified that he squeezed the bulge that he had felt in respondent’s pants and determined it was not solid, nor did it have any sharp edges.

After hearing this testimony, the trial court denied respondent’s motion to quash arrest and suppress evidence, saying that the search of respondent was proper because the officer had probable cause to believe a crime was in progress. The court also said that because a crumbled-up potato chip bag could have felt like “some kind of object that could possibly be a weapon,” “it [the search] properly meets” the requirements of Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

At the adjudicatory hearing, Officer Vega restated his testimony given at the motion to suppress hearing. On cross-examination, he said that he did not hear the conversation between respondent and the driver, nor did he see either of them exchange anything. He also said that more juveniles congregate at this particular corner than at other drug trafficking corners in the area. Officer Vega testified that when he retrieved the potato chip bag, he thought there was a possibility the bag contained drugs. While he did not think there was a gun in the bag, he testified that he believed that there possibly could have been some sort of weapon in the bag. The prosecution then successfully objected to defense counsel’s question regarding what type of weapon Officer Vega thought may have been in the bag.

At the conclusion of evidence, the trial court found the respondent was in possession of 3.95 grams of marijuana. The court denied respondent’s motion for a new hearing and entered a finding of delinquency. Respondent was declared a ward of the court and was placed on probation for 18 months, with 30 days in custody. After the parties submitted briefs on appeal, respondent made a motion to strike the State’s brief, on the grounds that the State waived any argument that the search was lawful under Terry v. Ohio by successfully objecting to the admission of evidence as to what kind of weapon Officer Vega thought was in the bag. That motion was taken with this case.

Opinion

Respondent contends the trial court erred in allowing the potato chip bag into evidence at the adjudicatory hearing because there was no probable cause for arrest and therefore the evidence was not properly seized in a search incident to an arrest. Moreover, respondent argues, Officer Vega’s stop and subsequent pat search of respondent did not sufficiently comply with the requirements set forth in Terry to justify the ensuing search and seizure under those standards.

In its brief, the State urged that probable cause for arrest existed, but its primary justification for admitting the evidence was that the stop and subsequent search were valid under Terry. Moreover, at oral argument, the State only asserted its Terry argument. Nevertheless, because the State did not formally withdraw its contention that probable cause existed, the grounds upon which the trial court predicated its ruling, we will briefly address that issue.

The reviewing court should not disturb the trial court’s finding on a motion to suppress unless that finding is shown to be manifestly erroneous. (People v. Waddell (1989), 190 Ill. App. 3d 914, 920, 546 N.E.2d 1068, 1073.) In Illinois, a peace officer may arrest a person when he has reasonable grounds to believe that the person is committing or has committed an offense. (Ill. Rev. Stat. 1989, ch. 38, par. 107 — 2(c).) “Reasonable grounds” has the same substantive meaning as “probable cause.” (People v. Wright (1974), 56 Ill. 2d 523, 528, 309 N.E.2d 537, 540.) If probable cause for an arrest exists and evidence is seized in a search incident to that arrest, then that evidence is admissible.

Respondent contends that the circumstances are not sufficient to support a reasonable inference that respondent had committed or was committing a crime, pursuant to the standards set forth in Sibron v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889. We agree that Sibron controls.

In Sibron, a police officer accosted the defendant after seeing him talk with known drug addicts over an eight-hour period. An ensuing search of the defendant’s pockets revealed heroin. The United States Supreme Court reversed the defendant’s conviction, saying that the officer had neither probable cause to arrest the defendant nor a reasonable suspicion to stop him.

The Court reasoned that the officer was not acquainted with the defendant and had no information concerning him. The officer merely saw the defendant talking to several known drug addicts over an eight-hour period. The Court emphasized the fact that the officer had no knowledge of the content of these conversations and that he saw nothing pass between the defendant and the addicts. The Court held that nothing resembling probable cause existed until after the search had turned up the envelopes of heroin, and that “[i]t is axiomatic that an incident search may not precede an arrest and serve as part of its justification.” Sibron, 392 U.S. at 62-63, 20 L. Ed. 2d at 934-35, 88 S. Ct. at 1902.

Here, as in Sibron, no evidence was introduced that the officer had any information concerning either respondent or the driver of the automobile. He merely saw the two having a conversation at a street corner in a drug trafficking area. The officer had no knowledge of the content of the conversation, nor did he see anything pass between respondent and the driver. The officer could not have made a reasonable inference that respondent was committing or had committed a crime. Therefore, there was not probable cause to arrest respondent at that time and the trial court erred in so ruling.

The State contends that even if probable cause did not exist when the officers observed respondent talking with the driver of the parked car, the evidence was properly obtained pursuant to a legitimate stop and frisk under the requirements set forth in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. The State argues that when the officer removed the potato chip bag from respondent’s pants pursuant to the pat search, he then had probable cause to arrest respondent and examine the contents of the bag incident to that arrest.

Respondent counters that: (1) Officer Vega did not have a basis for a reasonable suspicion that respondent was selling drugs to justify his stop of respondent; (2) even if reasonable suspicion existed, the officer had no reason to believe respondent was armed and dangerous to validate a pat search of respondent; (3) even if Officer Vega was justified in searching respondent, he exceeded the scope of that search by removing the potato chip bag from respondent’s pants; and (4) even if the officer could legitimately remove the bag from respondent’s pants, he was not justified in opening the bag and examining its contents.

Under Terry, an objective standard is used to determine whether a stop is reasonable. The facts available to the officer at the moment of the stop must lead “a man of reasonable caution” to believe the stop was appropriate. Terry, 392 U.S. at 21-22, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880; People v. Watson (1986), 145 Ill. App. 3d 492, 496, 495 N.E.2d 1153, 1156.

Illinois has codified Terry in section 107 — 14 of the Illinois Code of Criminal Procedure of 1963, which provides that a peace officer, after having identified himself as such, may lawfully stop any person in a public place for a reasonable period of time when he reasonably infers from all the circumstances that the individual is committing, about to commit or has committed an offense, and may demand the name and address of the person and an explanation of his actions. Ill. Rev. Stat. 1989, ch. 38, par. 107 — 14.

Officer Vega testified that, from his experience, the intersection of Division and Winchester is a known drug trafficking area. He said he has seen many drug transactions take place there and had made approximately a dozen arrests on that corner in the six months before trial. He also said more juveniles congregate there than at other corners. In describing such transactions, the officer testified that these drug transactions involve a common pattern in which an automobile pulls up to a corner and the driver then motions to the drug vendor, who is standing there. At that time, the vendor walks over to the car and the driver asks him for an amount. The: vendor and the driver then mutually exchange a package containing drugs for money.

Officer Vega observed respondent, a minor, being waved over to a car which had stopped at the intersection of Division and Winchester shortly after 10 p.m. Respondent then walked over to the car and began talking with its driver. The officer testified that when respondent saw the officer and his partner, he immediately walked away from the car. The officer said he heard nothing of the conversation between respondent and the driver, nor did he see anything exchanged, and that respondent’s back was to him. In light of the fact that, from Officer Vega’s experience, he knew drug transactions occurred at this corner with juveniles walking up to parked cars, the events of this case could lead him to reasonably suspect from all the circumstances that the respondent was committing or was about to commit a crime. Although these facts were not sufficient to justify an arrest, they were sufficient to justify the officer’s stop of respondent under section 107 — 14. See People v. Holman (1987), 157 Ill. App. 3d 764, 510 N.E.2d 1139.

Upon finding that Officer Vega legitimately stopped respondent, we must now determine the legality of the ensuing pat search. In Terry, the Court said the right to frisk does not follow automatically from the right to stop. If a reasonably prudent man in the same situation would be warranted in the belief that his safety or the safety of others is in danger, then a frisk would be proper. (Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.) In Illinois, section 108— 1.01 of the Illinois Code of Criminal Procedure provides that when an officer has stopped a person for temporary questioning pursuant to section 107 — 14, and he reasonably suspects that he or another is in danger of attack, he may search the person for weapons. If the officer discovers a weapon, he may take it until the completion of questioning, after which he shall either return the weapon, if lawfully possessed, or arrest the person. (Ill. Rev. Stat. 1989, ch. 38, par. 108— 1.01.) Respondent argues that Officer Vega did not show any specific and articulable facts that would lead to such a reasonable suspicion. We agree.

In People v. Galvin (1989), 127 Ill. 2d 153, 535 N.E.2d 837, the Illinois Supreme Court affirmed the granting of a motion to suppress, holding that while the initial stop of the defendant was valid, the subsequent frisk was not. The court said that while the appropriate test for deciding the validity of a frisk is an objective one, an officer’s testimony as to his subjective feelings is one of the factors which may be considered in the totality of the circumstances known to the officer at the time of the frisk. (Galvin, 127 Ill. 2d at 168, 535 N.E.2d at 843.) The police officer in Galvin specifically testified that he did not think he was in danger or that defendant was armed. The court said that although the officer testified that he searched defendant in order to protect his own safety, “[he] was never asked to specifically state what reasons existed which would lead a prudent person to reasonably believe that in the circumstances which existed at the time of the search, an officer would be warranted in the belief that his safety or that of others was in danger.” Galvin, 127 Ill. 2d at 168-69, 535 N.E.2d at 844.

At no time during the hearing on the motion to suppress or at the adjudicatory hearing in this case did the officer testify that, prior to the pat search, he believed respondent was armed. Moreover, unlike the facts in Galvin, the officer never even testified that he conducted a pat search of respondent in order to protect his own safety. In addition, no evidence was introduced showing that respondent made any furtive or threatening gestures upon being stopped by Officer Vega and his partner, nor did he admit any wrongdoing when questioned by the officers. The record is devoid of any other facts which would provide a basis to reasonably invoke a protective search. Given the totality of the circumstances at the time of the pat search, we cannot find that, as required by Terry, a reasonably prudent person would be warranted in the belief that his safety or that of others was in danger. Therefore, the pat search of respondent was not lawfully warranted.

Moreover, even if a protective pat search would have been justified under these circumstances, removal of the bag would still require the officer to have had reasonable grounds to suspect the bulge in respondent’s pants was a weapon. Respondent contends that no such grounds exist. We agree.

In support of his contentions, respondent relies on People v. Morgan (1985), 138 Ill. App. 3d 99, 484 N.E.2d 1292. In Morgan, the fourth appellate district reversed defendant’s conviction for possession of cannabis, holding that the trial court erred in denying defendant’s motion to suppress. In that case, a police officer observed defendant walking in a residential area primarily occupied by college students, who were likely to have been away on vacation at the time. Because the officer knew the area had a high incidence of burglaries when the students were away and defendant looked suspicious, he stopped defendant, questioned him about where he was going and asked him for identification.

As the officer was returning defendant’s identification, he noticed a six- to eight-inch bulge in the front of defendant’s jacket. The officer told defendant he could go, but then asked him what was underneath his jacket. When defendant took a step backward and said it was nothing illegal, the officer frisked him. The officer testified the bulging object felt like a “hard, cylindrical object,” which he thought may be a weapon. When he took the object out of defendant’s jacket, it turned out to be a bag of marijuana. Morgan, 138 Ill. App. 3d at 101, 484 N.E.2d at 1293.

The court held that no grounds existed which would justify the officer’s belief that he was likely to be attacked by defendant, because the officer had told defendant he could leave, and there was no indication that defendant was likely to attack the officer before doing so. The court also did not believe that a bag of marijuana could produce a bulge in defendant’s jacket resembling a weapon. Morgan, 138 Ill. App. 3d at 101-02, 484 N.E.2d at 1293.

The State contends that People v. Day (1990), 202 Ill. App. 3d 536, 560 N.E.2d 482, rather than Morgan, is the controlling case. In Day, an Illinois State Trooper stopped defendant’s car for speeding and subjected him to a Terry frisk. During the frisk, the officer noticed a small rectangular object in defendant’s right front pants pocket. The object was about IV2 inches in length and about a quarter-inch thick. The officer testified that he believed the object could have been a “razor blade wrapped up in something.” The officer then removed the object from defendant’s pocket. It turned out to be a small, white envelope, which he described as a “druggist fold,” containing cocaine. Day, 202 Ill. App. 3d at 540, 560 N.E.2d at 485.

Defendant’s motion to suppress was denied by the trial court. In affirming that decision, the Fourth District Appellate Court held that it was reasonable for the trial court to objectively determine that, a piece of paper could be folded in such a way as to produce a tactile sensation similar to that of a razor blade. The court distinguished, but did not repudiate, its decision in Morgan, where it held that an ordinary bag of marijuana was not likely to produce a bulge resembling a weapon. Day, 202 Ill. App. 3d at 545, 560 N.E.2d at 488.

As in Morgan and unlike the facts in Day, the object the officer felt in the instant case was not solid and had no sharp edges. It is not reasonable to believe that this object, a soft, crumpled-up potato chip bag containing packets of marijuana, could produce tactile sensations similar to those of a weapon. In fact, the officer did not testify to any tactile sensations even remotely consistent with the presence- of a weapon, as was the case in Morgan, where the officer testified he felt a hard, cylindrical object. Moreover, unlike the facts in Day, the officer in this case was precluded by the State’s objection from identifying what type of weapon he believed could possibly have been present in the potato chip bag. Consequently, even if the pat search had been valid, there would have been no justification for removing the object from the respondent’s pants while doing a protective search for weapons.

While Officer Vega’s stop of respondent complied with Section 107 — 14 of the Illinois Code of Criminal Procedure, the subsequent pat search and the officer’s removal of the potato chip bag from respondent’s pants were not valid under the requirements set forth in Terry v. Ohio. Therefore, we need not discuss whether the officer was justified in examining the bag’s contents. Also, because we now hold that the officer’s pat search of respondent did not substantively satisfy the standards of Terry, we need not address respondent’s contention that the State waived its argument that the search was lawful under that case.

Respondent demands an outright reversal without remand. The State has not interposed a request for remand in the event of a reversal. It is apparent that the State will be unable to prove its charges unless the narcotics found on respondent were properly admitted into evidence. With the required suppression of that evidence, the State would have no opportunity to prevail on a new trial. Accordingly, for all the reasons set forth, the finding of delinquency by the circuit court of Cook County is reversed.

Reversed.

LORENZ, P.J., and MURRAY, J., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, AFL-CIO, Petitioner, v. THE CHIEF JUDGE OF THE CIRCUIT COURT OF COOK COUNTY et al, Respondents.
    First District (6th Division)
    No. 1-89-3093
    Opinion filed January 18, 1991.

      Cornfield & Feldman, of Chicago, for petitioner.
    Jacalyn J. Zimmerman, of Illinois State Labor Relations Board, of Chicago, for respondent Illinois State Labor Relations Board.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen Michels Caille, Assistant Attorney General, of Chicago, and Margaret Kostopulos, of counsel), for respondent Office of the Chief Judge of the Circuit Court of Cook County.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, American Federation of State, County and Municipal Employee,., Council 31, AFL-CIO, appeals the decision of respondent, Illinois State Labor Relations Board (State Board) granting the request of the chief judge of the circuit court of Cook County (Employer), to remove a previously certified bargaining unit consisting of approximately 40 employees functioning as juvenile probation officers (PO Ills). On November 25, 1986, the State Board found that PO Ills should not be included in petitioner’s bargaining unit because they functioned as “supervisors” within the meaning of the Illinois Public Labor Relations Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 1601 et seq.).

On June 12, 1986, petitioner filed a representation petition with the Illinois Local Labor Relations Board (Local Board) seeking to represent three categories of probation officers (PO I, PO II, and PO Ills) in a bargaining unit. (The only category at issue in this appeal is the status of PO Ills.)

The Local Board hearing officer relied upon the supervisory test set forth in section 3(r) of the Act, which provides in relevant part:

“ ‘Supervisor’ is an employee whose principal work is substantially different from that of his subordinates and who has authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, or to adjust their grievances, or to effectively recommend such action, if the exercise of such authority is not of a merely routine or clerical nature, but requires the consistent use of independent judgment. Except with respect to police employment, the term ‘supervisor’ includes only those individuals who devote a preponderance of their employment time to exercising such authority State supervisors notwithstanding.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 48, par. 1603(r).

The Local Board hearing officer found that PO Ills performed principal work which was substantially different from that of their subordinates in directing, rewarding, and disciplining their subordinates and consistently using independent judgment in the direction of their subordinates. With respect to the phrase “preponderance of employment time,” as set forth in the second sentence of section 3(r), the Local Board hearing officer construed that term to mean “majority of time” or “more than 50 percent” in accordance with Local Board standards. This interpretation differed from that of the State Board, which defines “preponderance” as the “largest single allotment.” City of Burbank, 1 Pub. Employee Rep. (Ill.) par. 2008, No. S-RC-45 (ISLRB June 6, 1985).

The Local Board hearing officer concluded that PO Ills spent only 30% of their time in supervisory activities, which is less than the “majority of time” standard adopted by the Local Board. (However, the 30% supervisory activity was sufficient to satisfy the State Board’s definition of “preponderance.”) Therefore, on May 13, 1987, the Local Board certified petitioner as the exclusive representative of all juvenile probation officers, including the PO Ills.

On April 27, 1988, the State Board and Local Board, acting jointly (Joint Board), held that the county and the chief judge were joint employers of adult probation officers. (County of Cook, 4 Pub. Employee Rep. (Ill.) par. 2025, No. S — RC—87—113 (ISLRB Apr. 27, 1988).) The Joint Board determined that collective bargaining matters involving the chief judge and the county would be processed by the Joint Boards because the chief judge, a State official, was properly under the State Board’s jurisdiction, while the county fell under the Local Board’s jurisdiction.

On April 29, 1988, the Employer filed a petition for unit clarification with both the Local Board and the State Board. In that petition, the Employer sought to exclude PO Ills on two grounds: (1) that due to changes in the evaluation instrument, PO Ills would require additional time engaged in “supervisory” activities; and (2) recent changes in case law. The Employer relied upon the holding in City of Peru v. Illinois State Labor Relations Board (1988), 167 Ill. App. 3d 284, 521 N.E.2d 108, where this court reversed the Board’s interpretation of the scope of “substantially different work” and evaluated certain activities as supervisory, and the holding in County of Cook as set forth above.

In January 1989, a hearing was held on Employer’s unit clarification petition. The hearing officer limited the factual issue to whether there had been a change in the job duties of PO Ills. The hearing officer did not include the entire transcript of the previous representation case held by the Local Board; rather, she relied upon the Local Board’s final decision.

After the hearing (but prior to the Board’s decision), our supreme court issued its decision in Orenic v. Illinois State Labor Relations Board (1989), 127 Ill. 2d 453, 537 N.E.2d 784, holding that the State, and not the county, is the sole employer of judicial employees. In recognition of Orenic, the Joint Boards transferred this matter to the sole jurisdiction of the State Board, as the county is not, according to Orenic, an employer of the PO Ills.

Relying upon the supreme court’s decision in County of Kane v. Carlson (1987), 116 Ill. 2d 186, 507 N.E.2d 482, the State Board hearing officer found that judicial employees were among State employees, and that the exemption in the Act for State employees from the “preponderance” requirement included supervisors such as PO Ills. The State Board hearing officer found that the unit clarification petition was properly before the State Board because of recent changes in the law that affected the bargaining rights of employees, and that PO Ills’ duties and responsibilities had not changed since the petitioner was certified. The State Board hearing officer concluded that because the PO Ills functioned as supervisors under the Act, they should be excluded from the bargaining unit.

On October 25, 1989, the State Board accepted the recommended decision of the hearing officer and adopted it as its decision.

On appeal, petitioner contends that the State Board’s decision concerning the Employer’s unit clarification petition was barred by res judicata and collateral estoppel; that the Board erroneously construed the supervisory definition found in the Act because it did not include the “preponderance” test; and that the State Board’s decision was not based on the record and that an adequate record was not developed for review.

Plaintiff’s initial contention that Employer’s unit clarification petition was barred by principles of res judicata or collateral estoppel is without merit. It is well established that a prior determination by an administrative body is not res judicata in subsequent proceedings before it. (Hazelton v. Zoning Board of Appeals (1977), 48 Ill. App. 3d 348, 363 N.E.2d 44, citing Mississippi River Fuel Corp. v. Illinois Commerce Comm’n (1953), 1 Ill. 2d 509, 116 N.E.2d 394; Citizens Savings & Loan Association v. Knight (1966), 74 Ill. App. 2d 234, 219 N.E.2d 355; Daley v. License Appeal Comm’n (1965), 55 Ill. App. 2d 474, 205 N.E.2d 269.) An administrative body has the power to deal freely with each situation as it comes before it, regardless of how it may have dealt with a similar or even the same situation in a previous proceeding. Hazelton v. Zoning Board of Appeals, 48 Ill. App. 3d at 352.

Therefore, we find that in this case the hearing officer correctly set forth the special conditions established by the Board in which it will find that unit clarification petitions are appropriate. One such condition exists where there has been a change in statutory or case law that may affect the bargaining rights of the employees. State of Illinois, Departments of Transportation & Central Management Services, 1 Pub. Employee Rep. (Ill.) par. 2011, Nos. S — RC—68, S— UC-12 (ISLRB June 21, 1985).

We conclude that the holding in Orenic constituted a substantial change in case law as required by the Department of Central Management Services analysis to warrant review of Employer’s unit clarification petition. Although the decision in Orenic was filed after the hearing, the hearing officer properly relied upon it to determine that PO Ills, as court employees, are subject to the sole jurisdiction of the State Board. Moreover, it is undisputed that the probation officers are employees of the chief judge, a State official, and are therefore State employees. County of Kane v. Carlson (1987), 116 Ill. 2d 186, 507 N.E.2d 482.

Petitioner contends, however, that the State Board erroneously construed the supervisory test by excluding the “preponderance” element. The hearing officer found that the sentence in section 3(r) of the Act which stated that “[ejxcept with respect to police employment, the term ‘supervisor’ includes only those individuals who devote a preponderance of their employment time to exercising such authority State supervisors notwithstanding” (emphasis added) (Ill. Rev. Stat. 1985, ch. 48, par. 1603(r)), did not present an interpretation problem, and that the State Board’s prior determination in Illinois Departments of Transportation & of Central Management Services, 1 Pub. Employee Rep. (Ill.) par. 2025, Nos. S — UC—4, S — UC—20 (ISLRB Oct. 23, 1985), supported her position that State supervisors are exempt from the “preponderance” test. In that case, the State Board held that the inclusion of the “State supervisors notwithstanding” language in section 3(r) was ambiguous; therefore, the State Board construed the Act to exempt all State employees from complying with the “preponderance” test.

Petitioner disagrees and maintains that the phrase “State supervisors notwithstanding,” an amendatory veto added by Governor James R. Thompson, is intended to subject judicial employees, such as PO Ills, to the “preponderance” test. As support for its contention, petitioner cites the comments made by the sponsor of the Act, Representative Alan J. Greiman. Introducing the recommended changes, Representative Greiman stated that the Governor

“has made it specific that *** supervisors in the public sector are different than supervisors in the private sector so that a substantial number of employees in the public sector are given titles to reward them, without giving them any real authority *** over other employees’ wages, hours and working conditions, so that merely the name of that is not enough.” 83d Ill. Gen. Assem., House Proceedings, November 2, 1983, at 180 (statements of Representative Greiman).

Petitioner further maintains that the ordinary meaning of the word “notwithstanding” is unambiguous and clearly does not exempt State supervisors from meeting the “preponderance” test. We agree with both of petitioner’s arguments.

We find that Elinois Department of Central Management Services was incorrectly decided and decline to follow the State Board’s conclusion that PO Ills should be excluded from complying with the “preponderance” test. We hold that Representative Greiman’s explanation of the amendatory veto provides a sound rationale of the Governor’s intent. Representative Greiman stated that the amendatory language was added in recognition of the differences between supervisors in the private sector versus supervisors in the public sector, and that supervisors in the public sector are often given honorific titles without any real authority over other employees’ wages, hours and working conditions.

More importantly, the ordinary meaning of the phrase “notwithstanding,” is defined as “without prevention or obstruction from or by; in spite of.” (Webster’s Third New International Dictionary 1545 (1981).) Therefore, a literal interpretation of the phrase “notwithstanding” in the context of section 3(r) could only mean that the term “supervisor” includes only those individuals who devote a preponderance of their employment time to exercising such authority, in spite of their status as State supervisors.

Petitioner also maintains that there was no complete factual record upon which the State Board hearing officer could base a decision, and requests that we reverse and remand this cause to the State Board with instructions to develop a full record. Specifically, petitioner points out that the State Board hearing officer at the unit clarification limited introduction of the evidence to the change in job duties alleged by the Employer based on the new evaluation instrument, and did not look at all the evidence presented at the earlier representation proceeding.

We find that this case should be remanded to the State Board for development of a full record, in light of our determination that PO Ills are not exempt from meeting the “preponderance” test in section 3(r). After the court’s decision in Orenic, PO Ills, as State employees, are subject to the sole jurisdiction of the State Board. The original representation hearing during which the Local Board hearing officer evaluated the percentage of supervisory activity of the PO Ills was held over four years ago under the Local Board standard, which conflicts with that of the State Board.

Therefore, we reverse and remand the matter to the State Board for the development of a complete record in accordance with the State Board standards and for such further proceedings as are necessary.

Reversed and remanded with directions.

RAKOWSKI, P.J., and EGAN, J., concur.


author: PRESIDING JUSTICE RAKOWSKI JUSTICE EGAN,

text:
    EVELYN WOJDYLA, Indiv. and as Adm’x of the Estate of Eugene Wojdyla, Deceased, Plaintiff-Appellant, v. THE CITY OF PARK RIDGE et al., Defendants-Appellees.
    First District (6th Division)
    No. 1-90-0444
    Opinion filed January 18, 1991.
    Rehearing denied February 26, 1991.

      EGAN, J., dissenting.
    Leonard M. Ring & Associates, of Chicago (Leonard M. Ring and Leslie J. Rosen, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, John T. Coleman, Robert W. Smith, Jr., Michael A. Pollard, and Maureen J. McGinnis, of counsel), for appellee City of Park Ridge.

      Lord, Bissell & Brook, of Chicago (Evan A. Burkholder, Hugh C. Griffin, L. Anthony Lehr, and Diane I. Jennings, of counsel), for appellee Commonwealth Edison Company.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff-appellant Evelyn Wojdyla, individually and as administratix of the estate of Eugene Wojdyla, brought a nine-count complaint against defendants-appellees, City of Park Ridge (City) and Commonwealth Edison, alleging various theories of negligence. The trial court granted defendants’ motions for summary judgment. The issue is whether the City owed plaintiff’s decedent a duty to adequately light the area where the decedent crossed Busse Highway, pursuant to either the common law, the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1975, ch. 85, pars. 3 — 102(a), 3 — 103(a), 3 — 104(b)) or its agreement with the Illinois Department of Transportation (IDOT). We affirm.

At about 5 p.m. on December 29, 1976, plaintiff’s decedent Eugene Wojdyla was a pedestrian crossing Busse Highway in Park Ridge, Illinois. Busse Highway, at the point the decedent was crossing, was a six-lane thoroughfare which is lined with commercial buildings and residential dwellings. Parking is allowed on both sides of the street, and, in fact, Wojdyla was walking to his parked car when he was struck by an automobile.

Busse Highway was lighted on one side of the street by mercury vapor lamps which were placed some 325 feet apart. At the point where Wojdyla crossed, there was no pedestrian crosswalk, and the closest crosswalks were located about a half-mile away. There were no stop signs, yield, signs or traffic lights in the vicinity. The speed limit was 40 miles per hour.

At the time, Bruce Miller was driving his automobile in a southerly direction along Busse Highway. It was dark, and the streetlights were on. Miller’s automobile struck plaintiff’s decedent, who allegedly died as a result of the accident several years after the accident.

In 1976, the City was a signatory to an agreement with IDOT. The agreement provided that the City was to “operate and maintain” the streets covered by the agreement “in the best interests of the people of the State of Illinois.” The City was, by this agreement, charged with operating and maintaining “appurtenances” to the highway, which included the street lighting. Defendant Commonwealth Edison provided the street lighting along Busse Highway. Plaintiff has conceded that if we find that the City did not owe her decedent a duty in this case, then Commonwealth Edison owed no duty either.

In a cause of action alleging negligence, the plaintiff must establish the existence of a duty, a breach of that duty and an injury proximately resulting from the breach of the duty. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 18, 440 N.E.2d 96.) The question of the existence of a duty is a question of law. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 163, 456 N.E.2d 96.) A motion for summary judgment, as defendants presented in this case, properly addresses an issue of duty. Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 431, 495 N.E.2d 1295.

Section 3 — 102(a) of the Tort Immunity Act explains the City’s duty to maintain its property:

“[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 ***[.]” (Ill. Rev. Stat. 1987, ch. 85, par. 3— 102(a).)

A municipality has a duty to reasonably maintain its streets for vehicular traffic (Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 522 N.E.2d 215) and to reasonably maintain its crosswalks for pedestrians (see 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).

In a variety of factual contexts, the Illinois Appellate Court has considered whether municipalities owe a duty to pedestrians who cross streets or highways at locations other than crosswalks. In Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590, the plaintiff alleged that he was struck by an automobile while walking in the street, that the city knew that many pedestrians used the street due to the lack of a sidewalk, and that the city owed the pedestrians a duty to maintain a safe sidewalk for pedestrians. The court stated that “the liability of a municipality with respect to its public streets is limited to their use as streets.” (Deren, 13 Ill. App. 3d at 477.) The court further observed that it was “not prepared to create a general duty upon municipalities for the safeguarding of pedestrians when they are walking on public streets.” Deren, 13 Ill. App. 3d at 478.

In Risner, the plaintiff was struck by a bus as he attempted to cross a heavily travelled street in the middle of the block and in an area where there was no crosswalk provided. The court held that “plaintiff was not an intended or permitted user of defendant’s street, using it in a manner it was reasonably foreseeable it would be used; the street is for use by vehicular traffic — not pedestrians, except where defendant has provided crosswalks or the like.” (Emphasis in original.) Risner, 150 Ill. App. 3d at 831.

In Mason, the plaintiff was crossing the street in the middle of the block to reach her car parked across the street and fell into a hole in the street. The court observed:

“[T]he City owes no duty to warn pedestrians not using the crosswalk of any hazards outside of the crosswalk. The law imposes no general duty on municipalities for the safeguarding of pedestrians when they are using public streets as walkways. *** The law is well settled, therefore, that a municipality owes no duty to a pedestrian crossing a public street outside of the crosswalk.” Mason, 173 Ill. App. 3d at 331-32.

In Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, 525 N.E.2d 242, plaintiff fell into a hole in the street while approaching the trunk of his legally, curb-side parked car. In response to the contention that the defendant-village intended that the streets, crosswalks excepted, should be maintained only for vehicular traffic, the court stated:

“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.)

The Di Domenico court concluded that plaintiff, legally parked, could maintain a cause of action for negligence. Di Domenico, 171 Ill. App. 3d at 296-97.

Recently, in Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, 556 N.E.2d 660, plaintiff also stepped into a hole while getting into his illegally double parked vehicle in an area that was not a crosswalk. The court chose to follow the reasoning of Mason in affirming defendant-city’s motion for summary judgment. (Vlahos, 198 Ill. App. 3d at 914.) Most recently, in Princivalli v. City of Chicago (1990), 202 Ill. App. 3d 525, the court held that the granting of defendant’s motion for summary judgment was error where plaintiff stepped into a hole while crossing the street and walking from her legally parked vehicle. The court ruled as it did due to defendant’s failure to establish whether plaintiff was not an intended and permitted user of the street. (Princivalli, 202 Ill. App. 3d at 528.) The Princivalli opinion does not indicate whether the plaintiff was in a crosswalk or precisely where plaintiff received her injury in relation to her legally parked car.

In support of plaintiff’s argument that the City owed her decedent a duty in this case, plaintiff asserts that “Di Domenico is similar to this case,” as the decedent, “like the plaintiff in Di Domenico,” was using the street as a pathway to his automobile and had no alternate route available to him. The facts of this case, however, are more like Mason than Di Domenico. In the latter case, plaintiff was walking to the trunk of his car and fell into a hole only “a few feet from plaintiff’s vehicle.” (Di Domenico, 171 Ill. App. 3d at 294.) The court in Di Domenico addressed the situation where pedestrians use the “street area around the parked vehicle for ingress and egress to and from their [parked] vehicle.” (Di Domenico, 171 Ill. App. 3d at 295-96.) In this case, plaintiff’s decedent was struck in a center lane of a six-lane highway. The decedent, like the plaintiff in Mason, was crossing the street, not in a crosswalk, attempting to reach his car on the other side of the street. Thus, because Mason is on point, we need not discuss the consequences of the duty Di Domenico imposes. The result which obtains is that plaintiff’s decedent was not an intended and permitted user of the street at the time of the occurrence.

Nor does the fact that Eugene Wojdyla’s use of Busse Highway in such a manner may have been “foreseeable” compel a different result. Pursuant to the language of the Tort Immunity Act, foreseeability “pertains to use of the municipality’s property by permitted and intended users, not to foreseeable users *** ‘in a manner *** it was reasonably foreseeable it would be used.’ ” (Emphasis in original.) (Risner, 150 Ill. App. 3d at 831.) Here, plaintiff argues that there were residential and commercial buildings along the highway, parking was permitted by the City, and there was no pedestrian crosswalk within one-half mile at the point plaintiff’s decedent attempted to cross. Such a description, of course, applies to an infinite number of spots along the Illinois highway system. It is presumably known by municipalities, as it is known by the courts, that pedestrians cross the roads at such spots. Yet, at the time of the accident, plaintiff’s decedent was not an intended and permitted user of the street and was thus not owed a duty regardless of whether such use of the street was in some sense “foreseeable.”

Plaintiff also argues that by voluntarily undertaking to provide lighting on Busse Highway, the city owed her decedent the duty of reasonable care in providing the lighting. In support of this argument, plaintiff cites Baran v. City of Chicago (1969), 43 Ill. 2d 177, 251 N.E.2d 227, and Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205. In Baran, the plaintiff drove past the end of a street with a “T” intersection and crashed into a tree. The plaintiff contended that the streetlight was on the wrong corner, causing the intersection to be improperly illuminated. The Illinois Supreme Court stated “[t]he court has long recognized that where a city undertakes to provide lights, it is liable for injuries which result from deficient or inadequate ones.” Baran, 43 Ill. 2d at 180.

In Greene, the supreme court held that the defendant-city was liable to a motorist-plaintiff who was struck by another motorist while he stood behind his automobile on a street where the light was out, after his automobile had stalled and come to a stop. The court affirmed the principle that where a municipality undertakes to protect a street by lighting, it is liable for its negligence in carrying out that plan. Greene, 73 Ill. 2d at 108-09.

Baran and Greene, however, do not support the position of plaintiff for the reason that the plaintiffs in those cases were motorists to whom the municipality owed a duty. (See Crutchfield v. Yellow Cab Co. (1989), 189 Ill. App. 3d 1091, 1097, 545 N.E.2d 1091; Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 94, 523 N.E.2d 594.) Here, plaintiff’s decedent was not a motorist to whom a duty was owed, but rather was a pedestrian using the street as a walkway to his vehicle. Such use of the street does not serve to convert the street into a sidewalk or crosswalk so as to give rise to a duty on the part of the governmental unit toward plaintiff’s decedent.

Plaintiff also relies on the case of Thorson v. City of Chicago (1979), 74 Ill. App. 3d 98, 392 N.E.2d 716. Thorson involved a plaintiff who was struck by a car which swerved across the center lane. Plaintiff was walking in the street at the time because the city had tom up and removed the sidewalk on both sides of the street. The issue in Thorson was “whether the City owed a duty to maintain a sidewalk or provide a safe means of pedestrian travel.” (Thorson, 74 Ill. App. 3d at 106.) The court concluded “having once provided a sidewalk, the City thereafter had a duty to maintain it or otherwise provide a safe place to walk, or else give notice to the public that the street was closed to pedestrian traffic.” (Thorson, 74 Ill. App. 3d at 107.) Plaintiff’s decedent in this case, unlike the plaintiff in Thorson, had never benefited from the city’s providing any protection, as the city’s duty to provide adequate illumination runs only to the intended and permitted users of the street.

In Swett, the plaintiff aUeged that the defendant-municipality was negligent in, among other allegations, lighting a roadway plaintiff’s decedent was walking across. The decedent in Swett was struck by an automobile, traversing the street from a parking lot to a business establishment. The Swett court rejected the contention that a duty was owed by the city to the pedestrians, despite the allegations that pedestrian use of the street was intended by the municipality. (Swett, 169 Ill. App. 3d at 93-95.) We find Swett to be further authority which supports the conclusion that there was no duty owed in this case.

Plaintiffs attempt to impose liability by virtue of sections 3— 103 and 3 — 104 of the Tort Immunity Act must fail as well. These provisions, dealing with nonliability for the adoption of plans and for the failure to provide traffic devices, do not create duties either independent of or in addition to the duty which exists under section 3 — 102(a) of the Tort Immunity Act. As we have found no duty under the latter section, no obligation or duty is created by the former sections. See Curtis, 98 Ill. 2d at 165; Swett, 169 Ill. App. 3d at 95-96; Risner, 150 Ill. App. 3d at 832.

Finally, plaintiff contends that the City assumed a duty to adequately light the highway for the benefit of her decedent when the City agreed with IDOT to maintain the street “in the best interests of the people of the State of Illinois.” Plaintiff advances no case law or other authority to support the proposition that an agreement of this type would impose a duty owed to the decedent where no duty exists at the common law. The agreement says nothing about the city agreeing to provide lighting on Busse Highway for the benefit of pedestrians, and we hold that no duty should run based solely on the IDOT agreement.

At oral argument, plaintiff repeatedly argued that the absence of pedestrian crosswalks in the vicinity should not be used to “negate the City’s duty” to her decedent. Also at oral argument, plaintiff assured us that liability is not sought for the City’s failure to provide a crosswalk. Plaintiff argued that if the City had provided a crosswalk in the vicinity, and her decedent was struck by the vehicle only a few feet outside of the crosswalk, the City should still be liable.

Distilled to its finest, then, it is apparent that plaintiff’s argument is that municipalities have a duty to adequately light all such streets and highways, for the benefit of pedestrians, at every point where parking is allowed. However, given the absence of a legal basis for a duty owed plaintiff’s decedent in this case, we are disinclined to create one. It is well settled that foreseeability alone does not govern the determination of whether a duty is owed. As our supreme court observed in Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231: “The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account.” The magnitude of municipalities’ burden to guarantee the safety of pedestrians at all such points on all similar streets and highways, and the costs which would accompany such efforts, are tremendous, and we therefore refuse to impose such a duty upon municipalities.

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

Affirmed.

LaPORTA, J., concurs.

JUSTICE EGAN,

dissenting:

The issue in this case is whether the plaintiff, as a matter of law, was one of the persons “whom the [City] intended and permitted to use the [street] in a manner in which and at such times as it was reasonably foreseeable [to the City] that it would be used.” (Ill. Rev. Stat. 1975, ch. 85, par. 3 — 102(a).) The majority hold, as a matter of law, that the plaintiff was not one of those persons. I disagree; and I do so with the awareness that the greater precedential weight, but not all of it, lies on the majority side of the scale. But I respectfully disagree with the holdings of some of the cases, all appellate court opinions, cited by the majority: Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590; Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 523 N.E.2d 594; and Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, 556 N.E.2d 660. I also disagree with another case, not cited by the parties or the majority, Vance v. City of Chicago (1990), 199 Ill. App. 3d 652, 557 N.E.2d 494. Other cases cited by the majority may be distinguished: Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357; Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 527 N.E.2d 572; and Crutchfield v. Yellow Cab Co. (1989), 189 Ill. App. 3d 1091, 545 N.E.2d 961.

First, the essential facts: This accident occurred on December 29, 1976; the closest crosswalk was one-half mile away. The decedent had lawfully parked his car on one side of the street and had crossed to the other side. He was fatally injured when he was recrossing the street to his car. The City breached its duty to adequately light the area where the decedent crossed Busse Highway; the inadequate lighting was a proximate cause of the injury; and the inadequate lighting had existed for a sufficient time to place the City on notice. Last, the agreed law: A municipality has no duty to provide any crosswalks (Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 495 N.E.2d 1259) or lighting (Baran v. City of Chicago Heights (1969), 43 Ill. 2d 177, 251 N.E.2d 227). But if a municipality does undertake such improvements, it is liable for injuries which result from deficient or inadequate ones. (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205.) The majority concede, under these facts and the law, that the City owed a duty to provide adequate lighting, but only to motorists or pedestrians in a marked crosswalk or in certain very limited areas which will be discussed later.

The earliest case on this question (and relied on by most of the subsequent cases cited by the City) is Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590. The plaintiff was struck by a hit-and-run automobile while he was walking along a street. He maintained that the City was negligent, in part, for failure to provide walkways and to provide adequate street lighting. The majority of the Fourth District Appellate Court held that the City owed no duty to a pedestrian in the exercise of its control over the street. The court distinguished the use of the street by a motorist, a permitted user, and a pedestrian. The dissenting opinion disagreed with the conclusion of the majority that the street was “designed and built solely for vehicular traffic.” The dissent added the following observation:

“ “*** 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. A street is made for the passage of persons and property, and the law cannot define what exclusive means of transportation and passage shall be used.’ Molway v. City of Chicago, 239 Ill. 486 at 490.” (Emphasis added.) 13 Ill. App. 3d at 478 (Moran, P.J., dissenting).

I agree with the dissent that the supreme court in Molway rejected any argument that a street is designed and built solely for vehicular traffic. In that case, the plaintiff, a bicycle rider, was injured when he rode into a hole in the street. The City assigned as error the refusal to instruct the jury that “ordinary travel does not include the use of a street by one riding a bicycle thereon.” (Molway v. City of Chicago (1909), 239 Ill. 486, 488.) The appellate court affirmed the trial court and was in turn affirmed by the supreme court. The supreme court rejected the argument “that to make the highways or streets reasonably safe for bicyclists using reasonable care would impose more onerous duties upon municipalities than to keep them in repair for pedestrians or horse-drawn vehicles.” (Emphasis added.) (239 Ill. at 490.) Apparently, it was a given that pedestrians were permitted users of the streets.

At this point I wish to make it clear that I do not maintain that a municipality may not appropriately circumscribe areas to be used by pedestrians. To illustrate, in our recent decision in Prokes v. City of Chicago (1991), 208 Ill. App. 3d 748, we held that the City of Chicago owed no duty to the plaintiff for injuries suffered while riding a bicycle on a sidewalk, contrary to an ordinance. We reasoned that a person in violation of an ordinance could not be considered a permitted user under the statute. That same reasoning supports the distinction to be made in two other cases cited by the majority. In Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357, the First District Appellate Court affirmed an order of the circuit court granting the City of Chicago summary judgment. The plaintiff was struck by a Chicago Transit Authority bus as he stepped off a sidewalk curb and attempted to cross Adams Street in the middle of the block between State and Wabash Streets in Chicago, where neither crosswalk markings were painted nor any other traffic regulation signals existed. The appellate court identified the plaintiff as a “jaywalker.” (150 Ill. App. 3d at 830.) Although the opinion does not expressly say so, the plaintiff was in violation of the Traffic Regulations of the Municipal Code of Chicago. Section 27 — 282(b) then provided that “[n]o pedestrian shall cross a roadway other than at a crosswalk in any business district.” Similarly, in Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 527 N.E.2d 572, the plaintiff was injured while crossing a residential street in mid-block. The plaintiff conceded that she was a “jaywalker.” I assume that she also was in violation of some part of the city ordinance.

The other case relied on by the majority, which may be distinguished, is Crutchfield v. Yellow Cab Co. (1989), 189 Ill. App. 3d 1091, 545 N.E.2d 961. In that case the decedent was killed after she left a Chicago Transit Authority bus and was struck by a Yellow Cab taxi when she was attempting to cross the street. The decedent’s estate sued a number of defendants including Yellow Cab, the Chicago Transit Authority and the City. Yellow Cab filed third-party contribution actions against the Chicago Transit Authority and the City. The trial court granted summary judgment for the City and the Chicago Transit Authority on the estate’s complaint and the third-party complaint. On the appeal the decedent’s representative conceded that no action for negligence could be stated against the City for failure to provide warnings, lighting, crosswalks, or sidewalks, where none previously existed, for the safety of passengers concerning the bus stop involved. (189 Ill. App. 3d at 1096.) The appellate court identified the sole issue to be whether the location of the bus stop itself constituted negligence. It was Yellow Cab, not the representative of the decedent, who argued that the City had a duty to refrain from placing the bus stop where it did. Consequently, I do not believe the issue in this case was decided by the appellate court in Crutchfield.

No purpose would be served to discuss in detail Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, 556 N.E.2d 660, and Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 523 N.E.2d 594, also relied upon by the majority. Suffice it to say that Vlahos, in which the plaintiff was injured when walking to his illegally parked car, relied on Risner and Mason, and Swett relied on Deren and Risner. Respectfully, I disagree with their holdings.

The plaintiff has cited Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, 525 N.E.2d 242, in which the plaintiff was injured when he was walking to the trunk of his legally parked car and fell in a hole only “a few feet from plaintiff’s vehicle.” (Di Domenico, 171 Ill. App. 3d at 294.) The appellate court reversed a dismissal order and, in doing so, distinguished Deren. The court pointed out that in Deren the plaintiff was using the street as a sidewalk, while in Di Domenico, the plaintiff used the street as a passageway in order to get from his vehicle to the sidewalk and from the sidewalk to his vehicle. Di Domenico, it should be noted, was expressly not followed in Vlahos (198 Ill. App. 3d at 914). The majority seek to distinguish Di Domenico from this case because the decedent in this case was struck in the center lane of a six-lane highway. The majority then conclude that the plaintiff was like the plaintiff in Mason. In my judgment, the plaintiff in this case was not like the plaintiff in Mason. As noted, the plaintiff in Mason was an admitted “jaywalker” who, it is fair to assume, was in violation of a municipal ordinance.

The plaintiff also relies on two Illinois Supreme Court cases: Baran v. City of Chicago Heights (1969), 43 Ill. 2d 177, 251 N.E.2d 227; and Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205. Both cases affirmed judgments for the plaintiff for failure of the municipality to provide adequate lighting. In Baran the plaintiff was injured when he crashed his automobile into a tree. In Greene, the plaintiff was struck while he was standing behind his stalled automobile on a street where the light was out. I agree with the majority that Baran is factually distinguishable, but I do not agree with the assertion of the majority that Greene involved the duty owed to a motorist. The plaintiff was not a motorist at the time of the injury. Thus, under Greene, if the decedent in this case had been struck while standing in the street behind his car and, under Di Domenico, he had been struck while on the street near the driver’s door, the majority concede that the City would owe him a duty. But, because he unfortunately was struck before he reached those positions of sanctuary, his cause of action must fall. In my judgment, such a result comes from an artificial factual distinction between this case and Di Domenico and Greene.

The latest case on this so-often recurring question is Princivalli v. City of Chicago (1990), 202 Ill. App. 3d 525, 559 N.E.2d 1190, which supports the plaintiff’s position. I disagree with the majority’s suggestion that the opinion does not establish the location of the plaintiff at the time she was injured with sufficient certainty. The plaintiff legally parked her car across the street from her home. She left the car, walked around to the rear and stepped off the curb to the street. “As she was crossing the street,” she fell after stepping into a pothole. (202 Ill. App. 3d at 526.) She was crossing the street “in mid-block outside of a crosswalk.” (202 Ill. App. 3d at 527.) The appellate court reversed summary judgment for the City and distinguished Vlahos (plaintiff was walking to his illegally double-parked truck); Mason (plaintiff admitted that she had been jaywalking); Risner (plaintiff had been jaywalking); and Deren (plaintiff was struck by a car while using the roadway as a sidewalk). If it may be said that a person who could have walked a half-block to cross the street may maintain an action, how can it be said that a person who would have had to walk a half-mile to cross a street may not?

The majority conclude that to impose liability on a municipality for injury to pedestrians in the street would be a “burden to guarantee the safety of pedestrians” and would require “tremendous” cost. This is, of course, an appealing argument — conjuring up the hobgoblin of a run on the public purse always is. It is the same argument that was raised and rejected in Molway 81 years ago (Molway, 239 Ill. at 490); it was raised to resist any change in the doctrine of sovereign immunity; and it was raised to resist the removal of the distinction between governmental and proprietary functions insofar as they related to municipal liability. It is also, in this case, factually invalid. Requiring adequate lighting no more “guarantees” the safety of pedestrians than it does the safety of motorists. The same lights paid for by the taxpayers shine on the pedestrians, motorcyclists, bicyclists and, of course, motorists with the same luminosity and the same fine impartiality. The law should too. Moreover, the pedestrian still must prove a case. He must prove that the lighting was inadequate, that the inadequate condition existed for a sufficient period of time to provide notice to the municipality and to give the municipality an opportunity to correct it; and the pedestrian must also prove that the inadequate lighting was the proximate cause of the accident. In addition, the City does not surrender its right to raise the defense of contributory negligence.

Last, as I previously noted, there is nothing to prevent a municipality by ordinance to limit the use of its streets by pedestrians. For example, the Municipal Code of Chicago provides as follows:

“Whenever, upon the basis of an engineering or traffic investigation upon any street, it is determined that pedestrian crossing between intersections shall be prohibited in the interest of public safety, pedestrians shall not cross between intersections except where there may be a marked crosswalk. Such regulations against pedestrians crossing between intersections shall be effective when appropriate signs of giving notice thereof are erected.” (Emphasis added.) Chicago Municipal Code §9 — 60— 010(b) (1990).

Under the majority holding, the driver of the car that struck and allegedly caused the death of the decedent would have a cause of action against the City for property damage resulting from defective lighting, but the slain pedestrian’s estate would not. To me, such a result would be manifestly unjust.

There are many municipalities, including the one in which I reside, that do not have sidewalks or crosswalks. Pedestrians are required to use the streets, even for retrieval of mail. I feel confident that all such pedestrians, when informed that a municipality’s duty to provide the adequate lighting their taxes paid for extended only to vehicular traffic, would not simply dissent, they would protest in the strongest terms.

In sum, the decedent was legally parked one-half mile from a crosswalk. He was not in violation of any ordinance. In my judgment, he met the requirements of the supreme court’s pronouncement in Molway v. City of Chicago. It is also my judgment that the City intended and permitted him to use the street in a manner and at such time as was reasonably foreseen by the City.

For these reasons, I dissent. I would reverse the order of the circuit court and remand the cause for further proceedings.

      I have read the briefs in Princivalli which place the nearest crosswalk as a half-block from the scene of the accident. This is consistent with the appellate court’s determination that the accident occurred “in mid-block.”


author: JUSTICE BUCKLEY

text:
    RODNEY LOGAL, Plaintiff-Appellant, v. INLAND STEEL INDUSTRIES, INC., et al., Defendants-Appellees.
    First District (1st Division)
    No. 1-89-3449
    Opinion filed January 22, 1991.

      Cindy K. Lail, of St. John, Indiana, for appellant.
    Grippo & Elden, of Chicago (Philip C. Stahl and George R. Dougherty, of counsel), for appellees.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Rodney Logal (plaintiff) appeals from an order of the circuit court of Cook County which granted Inland Steel Industries, Inc. (Industries), and Inland Steel Company’s (Company’s) motion to dismiss plaintiff’s second-amended petition for a writ of mandamus compelling the inspection of certain corporate records pursuant to section 7.75 of the Illinois Business Corporation Act of 1983 (Ill. Rev. Stat. 1987, ch. 32, par. 7.75). Plaintiff contends that the circuit court erred in dismissing his petition. For the reasons that follow, we affirm.

Plaintiff’s petition alleges that on May 3, 1989, plaintiff made written request upon the chairman and chief executive officer of Industries to inspect certain corporate records of Industries and Company. Subsequent demands were made on May 16, 1989, and June 1, 1989. The petition alleges that these demands were denied.

The petition further alleges that plaintiff is and has been for the past 30 years an employee of Company and a Company stockholder from 1958 until 1986. The petition states that at the 1986 annual meeting, Company’s shareholders approved a corporate restructuring plan. Under this reorganization, Industries was created and now serves as a holding company for the stock of Company as well as for two other corporations. Upon reorganization, the petition alleges that plaintiff’s stock holdings in Company became stock holdings in Industries and that, as of the petition’s filing date, plaintiff owns 2,112 shares of Industries’ common stock. Plaintiff no longer owns any stock in Company.

Plaintiff’s petition asserts that in 1986, defendants closed the No. 3 Open Hearth Facility (the Facility) located in East Chicago, Indiana. According to the petition, the Facility was one of three basic types of steel-making furnaces that defendants employed to produce semi-finished steel from melted scrap metal. Relative to defendants’ other furnaces, the petition reports that the Facility enabled defendants to make the highest quality semi-finished steel more economically than that produced by defendants’ other furnaces. Also, the Facility was the most efficient furnace of its type in the world and was equipped with modern and extensive pollution control devices.

In his petition, plaintiff claims that the decision to close the Facility was the product of fraud or gross mismanagement which has resulted in great losses of revenue for Company and derivative losses to Industries and its shareholders. Accordingly, plaintiff seeks to inspect defendants’ books and records relating to the closing of the Facility in order to determine whether such fraud or gross mismanagement occurred, and if so, to institute shareholder derivative proceedings.

In support of his conclusion that the closing of the Facility was the result of fraud or gross mismanagement, plaintiff’s petition states that after its closure, defendants began buying huge quantities of scrap steel which were then exported. The petition reports that this exported scrap metal would have been usable at defendants’ facility but for its closure and that such material was not exported during the years the facility operated. In a July 31, 1989, letter from plaintiff to Industries’ preferred shareholders, which the petition incorporates as an exhibit, plaintiff openly wonders “why Inland is exporting the same commodity that it is buying,” and “how it can be more cost effective for Inland to purchase steel from outside companies instead of making the steel in its own open hearth.”

The petition further states that the Facility produced 20% of defendants’ steel in 1985 and that, immediately after its shutdown, defendants suffered steel shortages necessitating the “working down” of inventories and the purchase of huge tonnages of steel on the open market in 1986-1988. This decreased steel-making capacity attributable to the Facility’s shutdown rendered defendants unable to take full advantage of the subsequently occurring increased profitability of the American steel industry. In addition, the petition states that despite the rebound of the United States’ steel market’s profitability and defendants’ continuing steel shortages, the Facility was completely dismantled in 1988. In the same July 31, 1989, letter, plaintiff asserts that shutting and tearing down the Facility “was the wrong thing to do.”

Finally, the petition, through the July 1989 letter, states that during this time, the Japanese-based Nippon Steel Corporation began to have a “major involvement at Inland.” The letter describes how the Japanese performed internal studies of defendants’ facilities and how the defendants were negotiating with the Japanese regarding the opening of a joint venture. Also, plaintiff wonders in the letter whether the Japanese are getting the exported scrap and what price they are paying for it.

On November 16, 1989, the circuit court granted defendants’ motion to dismiss plaintiff’s petition. The court found that plaintiff’s petition failed to allege sufficient facts to support his assertion that he was a “shareholder of record” of Company or had a “proper purpose” for the inspection. Plaintiff contends on appeal that his petition alleges sufficient facts to support both requirements. We disagree.

Plaintiff’s petition to inspect corporate records is predicated on section 7.75(b) of the Illinois Business Corporation Act, which provides in part:

“Any person who is a shareholder of record shall have the right to examine, in person or by agent, at any reasonable time or times, the corporation’s books and records of account, minutes, voting trust agreements filed with the corporation and record of shareholders, and to make extracts therefrom, but only for a proper purpose.” Ill. Rev. Stat. 1987, ch. 32, par. 7.75(b).

As the express terms of this section provide, shareholders have the right to examine their corporation’s records if two important requirements are met. First, the examination must be for a proper purpose. (Sawers v. American Phenolic Corp. (1949), 404 Ill. 440, 447-49, 89 N.E.2d 374, 378-79; Dogget v. North American Life Insurance Co. (1947), 396 Ill. 354, 358-59, 71 N.E.2d 686, 688; Morris v. The Broadview, Inc. (1944), 385 Ill. 228, 232-34, 52 N.E.2d 769, 771.) Second, the party requesting an examination must be a shareholder of record of the corporation for which the records are sought. South Side Bank v. T.S.B. Corp. (1981), 94 Ill. App. 3d 1006, 1008-10, 419 N.E.2d 477, 478.

We first address the issue of whether plaintiff’s petition alleges sufficient facts to show a proper purpose. As to this issue, the Illinois Supreme Court has elaborated on what constitutes a proper purpose:

“A bona fide stockholder has a legal right of inspection when sought in good faith for a specific and honest purpose, not to gratify curiosity or for speculative or vexatious purposes, providing also the interest of such applicant is as a stockholder and is lawful in character and not contrary to the interest of the corporation.” Doggett, 396 Ill. at 358-59, 71 N.E.2d at 688.

In Sawers v. American Phenolic Corp. (1949), 404 Ill. 440, 448-49, 89 N.E.2d 374, 378, the court once again stated that a proper purpose is one which seeks to protect the interests of the corporation as well as the interest of the shareholder seeking the information. A shareholder has every right to examine corporate books and records to protect his interest so long as he has an honest motive and is not proceeding for vexatious or speculative reasons.

While we agree that a shareholder’s good-faith request to inspect corporate books and records in order to reveal fraud or gross mismanagement may constitute a proper purpose in Illinois (see Weigel v. O’Connor (1978), 57 Ill. App. 3d 1017, 1025, 373 N.E.2d 421, 427), our review of plaintiff’s petition leads us to conclude that it alleges no circumstances that justify plaintiff's assertion that the decision to close the facility amounted to fraud or gross mismanagement. The facts alleged by plaintiff — that (1) Company experienced steel-making capacity restraints after the facility was closed; (2) Company began buying steel from outside sources and then exporting it; (3) some of the exported steel was historically usable at the facility; (4) Company was unable to take full advantage of the market due to the facility’s shutdown; and (5) the Japanese involvement with the defendants — do not support plaintiff’s conclusion that the decision to close the facility was the result of fraud or gross mismanagement. They reveal nothing more than an employee-shareholder second-guessing a corporate decision made while functioning within a highly competitive, global industry.

In reviewing the sufficiency of the petition, we are mindful that a cause of action will not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiff to recover. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 380 N.E.2d 790, 794.) We also recognize that all well-pleaded facts must be taken as true for judging the sufficiency of the complaint. (Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill. 2d 278, 288, 499 N.E.2d 1319, 1322.) However, we further note that conclusions of law or fact that are unsupported by allegations of specific facts upon which such conclusions rest need not be taken as true. (Kirby v. Jarrett (1989), 190 Ill. App. 3d 8, 545 N.E.2d 965.) We conclude that even after giving plaintiff’s petition the required liberal construction (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 603(c)), the petition’s conclusion that fraud or gross management took place is not supported by the factual allegations plaintiff has set forth.

In reaching our conclusion, we do not intend to minimize the right of a shareholder to inspect corporate books and records. Nor do we intend to relay that plaintiff here is acting in bad faith. Our review of the petition, however, including the letters attached as ex-Mbits, demonstrates that plaintiff is seeking nothing more than to satisfy his curiosity as to recent events that he has witnessed or heard about as an employee. Satisfaction of curiosity does not constitute a proper purpose. Sawyers, 404 Ill. at 449, 89 N.E.2d at 379.

While this court could affirm the dismissal of plaintiff’s petition solely upon our resolution of the first issue, we also consider the issue of whether plaintiff’s petition alleges sufficient facts showing that plaintiff is a shareholder of record of Company. As to this issue, plaintiff concedes he is only a shareholder of record of Industries. However, plaintiff contends Company is a mere alter ego of Industries, and therefore, he is also a shareholder of record of Company.

In South Side Bank v. T.S.B. Corp. (1981), 94 Ill. App. 3d 1006, 1008-10, 419 N.E.2d 477, 478-80, the court addressed the issue of whether, under an earlier version of section 7.75 of the Act (Ill. Rev. Stat. 1983, ch. 32, par. 157.45), a parent corporation’s shareholder has the right to examine the corporate records of the parent’s subsidiary where the shareholder owns no stock in the subsidiary.

In resolving the issue before it, the court in South Side Bank noted that the issue was one of first impression in Illinois. Our research reveals it is the oMy Illinois case to date which has addressed the issue. After reviewing the cases from other jurisdictions on the issue, the court in South Side Bank concluded that no cause of action is stated where the petition contains no factual allegations that the subsidiary is the mere alter ego or instrumentality of its parent or that fraudulent transactions have taken place between the two corporations. In South Side Bank, because the plaintiff’s petition totally lacked such allegations, the court affirmed the dismissal of the shareholder’s petition to compel examination of the subsidiary’s corporate records.

Generally, before a court will pierce a corporate veil, it must be shown that one corporation so controls the affairs of another that the other is the mere instrumentality or dummy of the former and that, under the circumstances, the observance of the fiction of separate corporate existences would sanction a fraud or promote injustice. (Main Bank v. Baker (1981), 86 Ill. 2d 188, 205, 427 N.E.2d 94, 101.) While Illinois courts act reluctantly when asked to pierce the corporate veil (Sumner Realty Co. v. Willcott (1986), 148 Ill. App. 3d 497, 501-02, 499 N.E.2d 554, 557), in determining whether piercing is proper, they have looked to the following factors: (1) inadequate capitalization; (2) failure to observe corporate formalities; (3) commingling of funds; (4) the absence of corporate records; and (5) the failure to maintain arm’s length relationships among related entities. Bankers Trust Co. v. Chicago Title & Trust Co. (1980), 89 Ill. App. 3d 1014, 1019, 412 N.E.2d 660, 664.

In this case, plaintiff’s petition alleges seven factors to demonstrate that Company and Industries are mere instrumentalities of another: (1) Company’s board of directors in 1985 were exactly the same persons as were on Industries’ board of directors in 1986; (2) eight out of nine of Industries’ officers in 1986 were officers of Company in 1985; (3) the president, chairman and chief executive officer of both Industries and Company in 1987 and 1988 were the same persons; (4) Industries and Company have their principal office in Chicago; (5) Industries issued stock certificates to plaintiff on Company’s certificates by merely placing a stamp across old Company stock certificates that stated: “This certificate represents shares of common stock, $1.00 par value, of Inland Steel Industries, Inc.”; (6) Industries issued stock under Company’s employee stock purchase plan; and (7) Company and Industries use the same trademark.

Our review of the seven factors set forth above leads us to conclude that under South Side Bank and corporate veil-piercing principles, plaintiff’s instrumentality or alter ego theory cannot be sustained. As to the first four factors, Illinois has long held that the separate corporate existence of two corporations may not be disregarded merely because one of the corporations owns the stock of the other, the two share officers, or occupy the same office space. (Sumner Realty Co. v. Willcott (1986), 148 Ill. App. 3d 497, 501-02, 499 N.E.2d 554, 557.) Indeed, these practices are common and exist in most parent-subsidiary relationships. (Main Bank v. Baker (1981), 86 Ill. 2d 188, 204-05, 427 N.E.2d 94, 101.) To hold otherwise would render virtually every subsidiary the alter ego of its parent.

Turning to the remaining factors, they do not justify the conclusion that Company and Industries are mere instrumentalities of another. The issuance of Industries’ stock on old Company certificates does not dictate the conclusion that separate corporate existences were ignored. Rather, Industries’ use of Company’s stock certificates, instead of printing certificates anew, shows the observance of corporate formalities and the prevention of corporate waste. Similarly, as to the employee stock purchase plan, the exhibits in the record show that upon reorganization, Industries assumed all of the employee compensation and benefit plans of Company. As a result, it was totally proper for Industries to issue benefits under Company’s old employee benefit plan. Finally, as to Industries’ and Company’s use of the same trademark, the conclusion that their funds are being commingled is not reached in light of the fact that many corporations use the trademarks of others under license agreements. The use of one company’s trademark by another, without more, does not show that the two are instrumentalities of each other.

Apart from the insufficiency of the petition’s allegations, the record reflects that Industries acts as a parent corporation for two other companies: Joseph T. Ryerson & Son, Inc., and J.M. Tull Metals Company, Inc. The record reflects that, prior to the reorganization, Ryerson had been a Company subsidiary for over 50 years and that Tull Metals was purchased by Industries in 1986 for $100 million. These facts further demonstrate that plaintiff’s alter ego theory is not well founded.

Accordingly, we conclude that plaintiff’s petition fails to allege sufficient facts to justify the assertion that Company and Industries are mere alter egos of another. Consequently, because plaintiff is not a “shareholder of record” of Company and has no “proper purpose,” the order of the circuit court dismissing plaintiff’s petition is affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


author: JUSTICE O’CONNOR

text:
    RAYMOND GREENE, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (1st Division)
    No. 1-90-1079
    Opinion filed January 22, 1991.

      Cooney & Conway, (Timothy R. Ocasek, of counsel), for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Michelle A. Hutchinson, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Raymond Green, brought this action against defendant, City of Chicago, to recover for injuries he sustained when he stepped off the curb while on a way to a friend’s house and fell into a pothole on the street. Plaintiff was not walking within a crosswalk when he fell. Plaintiff alleged that defendant had a duty to maintain the streets, and its negligent failure to repair the pothole created a dangerous and defective condition on the street. Defendant moved for summary judgment on the grounds that a municipality owes no duty to pedestrians crossing a public street outside of the crosswalk. The circuit court granted summary judgment for defendant, stating that the streets are made for automobiles, not for pedestrians except at intersections where there are marked or unmarked crosswalks.

Plaintiff raises the following issues on appeal: (1) defendant had a duty to maintain the street in a reasonably safe condition for its intended, expected and foreseeable uses, including the areas intended and expected to be used by pedestrians, and (2) since plaintiff fell into a pothole on the street only two to three feet from the curb and defendant permitted the location where plaintiff fell to be used for parking, plaintiff’s fall in that area was an action both intended and expected by defendant. We affirm.

The only issue presented at the summary judgment proceeding was whether defendant owed a duty to plaintiff. The question of the existence of a duty is one of law to be decided by the court, and if, based upon the pleadings and accompanying affidavits, it appears that no duty is owed plaintiff, summary judgment for defendant is proper. Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, 556 N.E.2d 660.

Defendant owes no duty to warn pedestrians not using the crosswalk of any hazards outside of the crosswalk. (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.) The law imposes no general duty on municipalities for the safeguarding of pedestrians when they are using the public streets as walkways. (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; Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590.) To demand such a duty would overextend a municipal function. (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; Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590.) The law is well settled, therefore, that a municipality owes no duty to a pedestrian crossing a public street outside of the crosswalk. 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.

We believe that Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, 525 N.E.2d 242, is inapplicable in the case at bar. In Di Domenico, the Third District Appellate Court held that since the defendant permitted curbside parking on the street where plaintiff fell en route to the trunk of his legally parked vehicle, it must have recognized the necessity of pedestrians walking in the street and using a portion of it as a pathway to and from their vehicles. However, the instant case does not present a similar factual situation, and we conclude that defendant had no duty to a pedestrian such as the plaintiff who stepped off the curb into a pothole in the street. (See Vlahos v. City of Chicago (1990), 198 Ill. App. 3d 911, 556 N.E.2d 660.) We are not persuaded by the plaintiff’s argument that because parking was allowed at this location on the street, defendant owed him a duty. The plaintiff in the present case was not en route to or from his motor vehicle, but was crossing the street outside the crosswalk to go to a friend’s house.

We also note that in Princivalli v. City of Chicago (1990), 202 Ill. App. 3d 525, 559 N.E.2d 1190, we held that the questions of whether plaintiff was an intended and permitted user of the street and whether his use of the street was reasonably foreseeable must be resolved before summary judgment on the issue of defendant’s duty can be entered. We believe that the trial court in the present case did correctly determine that plaintiff was not an intended and permitted user of the street because he was a pedestrian crossing the street outside of a crosswalk; therefore, his use of the street was not reasonably foreseeable.

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

Judgment affirmed.

CAMPBELL and BUCKLEY, JJ., concur.