author: JUSTICE BOWMAN PRESIDING JUSTICE REINHARD,

text:
    MICHAEL HUTCHINGS, Plaintiff-Appellant, v. EUGENE BAUER et al., Defendants-Appellees.
    Second District
    No. 2—90—0689
    Opinion filed April 17, 1991.

      REINHARD, P.J., specially concurring in part and dissenting in part.
    Rudolph E Magna, Jr., of Gurnee, for appellant.
    Glen E. Amundsen, Ellen S. Martin, and Michael Resis, of Querrey & Harrow, Ltd., of Chicago, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Michael Hutchings, brought an action against defendants, Eugene and Elizabeth Bauer, as a result of a motorcycle accident in Wauconda Township, Illinois. Plaintiff’s two-count complaint alleged negligence and willful and wanton conduct on the part of defendants. Defendants moved for summary judgment, arguing that, under section 368 of the Restatement (Second) of Torts, they owed no duty to plaintiff in this case. The trial court granted defendants’ motion, finding that no genuine issue of material fact was present, and that under the authority of Battisfore v. Moraites (1989), 186 Ill. App. 3d 180, “the plaintiff’s deviation from the roadway was not an accidental deviation from the roadway as a normal incident of travel.” The court also found no reason to delay enforcement or appeal of the order pursuant to Supreme Court Rule 304(a). (134 Ill. 2d R. 304(a).) Plaintiff now appeals and alleges that the trial court erred in granting defendants’ motion for summary judgment. We reverse and remand.

Plaintiff raises the following contentions for our consideration on review: (1) that defendants owed a duty of care to the plaintiff because it was reasonably foreseeable that those traveling with reasonable care upon the highway would deviate from it in the ordinary course of travel and come into contact with the barrier erected by defendants; (2) that defendants violated a statutory duty to plaintiff not to obstruct a public roadway; and (3) that plaintiff had obtained the status of a licensee upon defendants’ property, whereupon defendants then owed a duty of reasonable care not to injure plaintiff.

The facts of this case, adduced from the pleadings, depositions and exhibits on file, can be summarized as follows. On May 30, 1986, at approximately 3:05 p.m., plaintiff was allegedly injured when his motorcycle slid on loose gravel and went off the paved portion of Callahan Road in Wauconda Township and struck a barrier constructed by defendants. Plaintiff’s complaint alternatively alleged that the defendants negligently and carelessly or willfully and wantonly placed a horizontal post or log in an area where defendants knew or should have known that vehicles leave northbound Callahan Road.

Callahan Road is a township road running generally north and south. Just prior to the location where plaintiff’s motorcycle left the pavement, the roadway runs in an east to west direction and then curves sharply to the north. Plaintiff was in the northbound lane of Callahan Road at the time his motorcycle entered the curve. South and west of the curve there are several chevron signs marking the curve. There is also a 25-miles-per-hour “advisory” speed limit sign. The legal speed limit through the curve is 35 miles per hour. Plaintiff was familiar with the road, having traveled it 5 to 10 times in the month prior to the accident, and he knew that there was a sharp curve in the road. Plaintiff had seen the upright posts that defendants had installed at least a half dozen times before and knew that there was a fenced-in pasture nearby. Plaintiff did not know, however, that at the base of the vertical posts, and concealed by knee-high grass, were two horizontal logs or posts.

On the date of the accident, plaintiff and several of his friends were returning home from work and were riding their motorcycles northbound on Callahan Road. Plaintiff was the third in a line of four motorcyclists with Brad Davis and Ralph Galster in front and Carlos Nicoli behind. Plaintiff was riding near the outside or eastern-most portion of northbound Callahan Road. He hit some loose gravel on the road as he entered the curve and slid to the east across the graveled shoulder for 10 or 15 feet, and then onto the grass to the east of the shoulder of the road. Plaintiff was traveling between 35 to 37 miles per hour immediately before he left the highway and approximately 35 miles per hour at the time he actually left the highway. Plaintiff then traveled along the grass parallel to and approximately six to eight feet from the gravel shoulder for a distance of 150 to 300 feet before encountering defendants’ barrier. As plaintiff traveled across the grass, he attempted to reduce his speed and regain control of his motorcycle. By the time he regained control of his motorcycle, plaintiff was approximately 15 feet from defendants’ barrier and was able to reduce his speed to approximately 15 to 20 miles per hour. At this point, however, plaintiff felt that he was still going too fast and was too close to the upright fence posts to be able to turn his motorcycle to the left in order to get back onto the road. Plaintiff then decided to pass between the second and third posts rather than attempt to lay his motorcycle down on the ground. As he attempted to pass between the upright posts at about 15 miles per hour, plaintiff hit an obstruction. When he hit defendants’ barrier, plaintiff’s head hit the instrument panel on his motorcycle, and he fell to the side.

At the time of the accident, the defendants operated a business of raising Norwegian Fjord ponies on the property, consisting of approximately 80 acres, and the grazing of these ponies required the fencing of the property. Along the immediate outside of the perimeter of the pasture fencing was a training lane which traversed around defendants’ property for a distance of 5.4 miles. Defendants trained their ponies along the training lane practically every day of the year including the years 1985 and 1986. Defendant Eugene Bauer’s first recollection of a vehicle leaving Callahan Road and entering upon his property was in 1973 after he and his wife moved onto the property. Defendants knew that cars, trucks and motorcycles came off the curve at Callahan Road and broke their fence posts; these occurrences took place both prior to and after the date of plaintiff’s accident. At the time of his deposition on December 5, 1988, defendant Eugene Bauer was aware of “far more than 50” incidents of vehicles leaving Callahan Road and entering upon his property. A letter dated November 4, 1980, from defendant to Edward Streed, superintendent of the Lake County Highway Department, was introduced as an exhibit during defendant’s deposition. In the letter, defendant makes the following statements:

“Unfortunately most of the cars that end up in the field, somehow or another, get out and are gone before the damage can be assessed to them, and you know who is on the short end of the stick. ***
*** Having no alternative and having a sizable band of very valuable Norwegian horses in this field in the past month or two, I have erected a ‘barricade of large posts.’ This barricade is on my fence line and in such position to stop the ‘rollovers and/or others’ who fail to make the curve prior to their going through my fence. I want you to know that I intend to expand the size of this barricade through the use of additional very, very sizable posts (that are, believe me, well into the ground). It is probably only a question of time until someone again comes off the road at that curve and ends up being ‘stopped’ by our barricade.”

Frank Gossell, the Wauconda Township road commissioner, testified in his deposition that the point of impact was outside of the right-of-way for Callahan Road. Robert Degen, a licensed surveyor, testified in his deposition that he could not determine whether the point of impact was inside or outside of the right-of-way for Callahan Road. Degen did state, however, that of the two vertical posts that plaintiff attempted to drive between, the western-most post, which was 21 feet from the edge of the roadway, would be within the right-of-way, while the eastern-most post, which was 26 feet from the edge of the roadway, would be outside of the right-of-way.

With these facts in mind, we turn now to our analysis of whether the lower court erred in granting defendants’ motion for summary judgment. Summary judgment 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 from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) The motion shall be granted only if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c); Purtill, 111 Ill. 2d at 240.) The court must construe the evidence strictly against the movant and liberally in favor of the opponent. Purtill, 111 Ill. 2d at 240.

Necessary to any recovery based on negligence is the existence of a duty to conform to a certain standard of conduct for the protection of the plaintiff. (Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 116.) It is well settled that the question of duty, i.e., whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon defendant an obligation of reasonable conduct for the benefit of the plaintiff, is one of law to be determined by the court. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525.) Reasonable foreseeability of injury is a key concern in determining whether a duty exists. (Kirk, 117 Ill. 2d at 526.) The court should also consider the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing the burden on the defendant. (Kirk, 117 Ill. 2d at 526.) The law applicable to motions for summary judgment which involve the issue of duty has been set forth in Barnes v. Washington (1973), 56 Ill. 2d 22:

“ ‘It may be stated generally that if what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered.’ [Citation.] This court has also held that the entry of a summary judgment is proper when only a question of law is involved. [Citation.] Thus, if under the pleadings and affidavits it appears that the defendant owed no duty to the incompetent, the granting of the motion for summary judgment was proper.” Barnes, 56 Ill. 2d at 26-27.

Section 368 of the Restatement (Second) of Torts, which states the general rule regarding the duty of an owner of land abutting a public highway to protect travelers upon the highway who may come in contact with artificial conditions on the land, has long guided Illinois courts in factual situations similar to the instant case. (Restatement (Second) of Torts §368 (1965); Battisfore v. Moraites (1989), 186 Ill. App. 3d 180; Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213; Boylan v. Martindale (1982), 103 Ill. App. 3d 335; Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721; West v. Faurbo (1978), 66 Ill. App. 3d 815; Kubala v. Dudlow (1958), 17 Ill. App. 2d 463.) Section 368 provides:

“A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.” (Restatement (Second) of Torts §368, at 268 (1965).)

The official comments to the Restatement further illustrate the applicability of this rule:

“[The rule] applies also to those who reasonably and expectably deviate from the highway and enter upon the abutting land in the ordinary course of travel. The possessor is required to anticipate the possibility of such deviations and to realize, where a reasonable man would do so, that the traveler so deviating may encounter danger. The public right to use the highway carries with it the right to protection by reasonable care against harm suffered in the course of deviations which may be regarded as the normal incidents of travel.
* * *
In determining whether the condition is one which creates an unreasonable risk of harm to persons lawfully travelling on the highway and deviating from it, the essential question is whether it is so placed that travelers may be expected to come in contact with it in the course of a deviation reasonably to be anticipated in the ordinary course of travel. Distance from the highway is frequently decisive, since those who deviate in any normal manner in the ordinary course of travel cannot reasonably be expected to stray very far. *** Distance is important, however, only as it affects the recognizable risk; and other factors, such as the nature of the condition itself, its accessibility, and the extent and character of the use of the highway, must be taken into account.” (Restatement (Second) of Torts §368, Comments e, h, at 269-71 (1965).)

Finally, the Restatement provides an illustration of a factual situation involving a foreseeable deviation in the ordinary course of travel:

“1. A digs a ditch immediately adjacent to a highway upon which his land abuts at a point where cars, though carefully driven, are likely to skid. B’s carefully driven car skids off the highway and into the ditch. A is subject to liability to B.” Restatement (Second) of Torts §368, Illustration 1, at 270 (1965).

Reviewing the record in light of the above guidelines, we conclude that the trial court erred in granting summary judgment for defendants. We believe it was reasonably foreseeable to defendants under the present facts that plaintiff would deviate from the road as he did as a normal incident of travel. Defendants were well aware of the fact that vehicles left the roadway at the curve and entered upon their property. From the time defendants first considered purchasing the property in 1973 to Eugene Bauer’s November 4, 1980, letter to the superintendent of the Lake County Highway Department, defendants had actual knowledge of at least 28 vehicles leaving the curve and entering upon their property. Moreover, at the time of his deposition in 1988, defendant Eugene Bauer was aware of “far more than 50” incidents of vehicles leaving Callahan Road and entering upon his property. Defendant’s statement at his deposition demonstrates the reasonable foreseeability that plaintiff would leave the road in the manner in which he did and come in contact with defendants’ barrier, to wit, “[I]t is probably only a question of time until someone again comes off the road at that curve and ends up being ‘stopped’ by our barricade.”

Defendants in their brief make much of the fact that plaintiff hit their barrier some 21 to 26 feet from the edge of the road and some 100 to 300 feet from the point where plaintiff first lost control of his motorcycle. With respect to distance, it is true that “[distance from the highway is frequently decisive, since those who deviate in any normal manner in the ordinary course of travel cannot reasonably be expected to stray very far.” (Restatement (Second) of Torts §368, comment h, at 271 (1965).) Were this the first time that a vehicle had left Callahan Road and entered onto defendants’ property, we might be more inclined to agree that distance in this case was dispositive. However, it is also true that “[distance is important, however, only as it affects the recognizable risk; and other factors, such as the nature of the condition itself, its accessibility, and the extent and character of the use of the highway, must be taken into account.” (Restatement (Second) of Torts §368, comment h, at 271 (1965).) Under the facts of this case, where defendants had actual notice of numerous prior incidents, these other factors do not weigh in defendants’ favor. Even though the distance involved is relatively substantial, defendants’ barrier clearly involved a recognizable hazard to travelers upon Callahan Road. Taking these factors into account, it is clear that the recognizable risk is that vehicles which deviate from the curve on Callahan Road will travel toward defendants’ property in the area where they constructed the barrier. Moreover, the nature of the condition (the barrier) is such that it was designed to stop moving vehicles which might leave Callahan Road from proceeding further onto defendants’ property. The extent and character of the use of the roadway is such that on numerous previous occasions vehicles have left the roadway at this curve and entered upon defendants’ property. We conclude that the distance traveled in this case does not take plaintiff’s accidental deviation out of the “ordinary course of travel.”

The second factor courts review when deciding whether a duty exists is the likelihood of injury occurring from the harm created by defendant. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 526.) Here, defendants chose to put a hard, well-supported barrier in the path of oncoming vehicles which might leave the curved portion of Callahan Road. According to defendant Eugene Bauer in his deposition, the barricade used “very sizable posts” that were “well into the ground.” Under these circumstances, we believe the likelihood of injury is obvious.

Also bearing on the issue of duty is the magnitude of the burden of guarding against injury and the consequence of placing that burden upon defendants. (Kirk, 117 Ill. 2d at 526.) In this case, we believe the burden and the attendant consequences are relatively minimal. At most, defendants could be required to move a small portion of the pasture fence. As a somewhat less burdensome alternative, defendants could use softer barriers of a break-away type. At the very least, defendants could have posted some form of warning on or near the horizontal barrier, so as to give notice of its existence to motorists. Thus, while we sympathize with the defendants’ plight and agree that they have a right to protect their property, such feelings do not vitiate the fact that, under the circumstances of this case, defendants also owed a duty to protect travelers on the adjacent roadway.

Finally, we note that the trial court, in granting defendants’ motion for summary judgment, relied specifically on Battisfore v. Moraites (1989), 186 Ill. App. 3d 180. In Battisfore, the driver of a car in which plaintiff’s decedent was a passenger failed to negotiate a curve, left the road and struck a cement pillar erected by Outboard Marine Corporation (OMC) to protect its property. Plaintiff, administrator of the estate of the deceased passenger, claimed that OMC was negligent or willful and wanton in placing the cement pillar immediately next to the roadway at a curve and in failing to warn travelers of its existence. This court affirmed the trial court’s granting of summary judgment, holding that the defendant landowner owed no duty to plaintiff. Battisfore, 186 Ill. App. 3d at 190.

We believe Battisfore is distinguishable from the instant case in two respects. First, there is a great difference between the speed of the vehicles in relation to the applicable speed limits. The Battisfore court found speed especially important, stating as follows:

“[PJlaintiff’s decedent left the road and collided with the cement pillars on OMC’s land while in a car traveling between 40 and 50 miles per hour around a clearly marked and illuminated sharp curve in a commercial area for which the general 30-miles-per-hour speed limit along the road was reduced to 20 miles per hour. Such deviation was not in the ordinary course of travel. ***
*** We do not believe that a duty should be placed on OMC under the circumstances here to guard against injury to plaintiff’s decedent who is injured while a passenger in a vehicle which goes off the roadway striking the barricade pillar while traveling at a speed of 40 to 50 miles per hour around a curve in a clearly marked 20-miles-per-hour speed zone.” (Battisfore, 186 Ill. App. 3d at 189-90.)

Here, plaintiff was traveling at approximately 35 miles per hour when he lost control of his motorcycle. While the “advisory” speed limit for the curve is 25 miles per hour, the legal speed limit for the area is 35 miles per hour. As we noted previously, Wauconda Township highway commissioner Frank Gossell testified in his deposition that a person cannot be given a ticket for violating this advisory speed limit. Thus, while plaintiff’s decedent in Battisfore was traveling in a car that was exceeding the speed limit by 20 to 30 miles per hour, plaintiff in the present case was either traveling at the legal speed limit or at most exceeding the advisory limit by 10 miles per hour.

Second, while there was some mention of the fact that other cars had left the road at the curve in Battisfore, the evidence of prior incidents was not as clear in that case as it is here. Defendants here were aware of well over 50 incidents of vehicles leaving Callahan Road and entering upon their property. Defendant Eugene Bauer accurately predicted that it was just a matter of time before someone else left the road and was stopped by his barrier. To the extent that the existence of prior incidents affects reasonable foreseeability, the evidence before us in the instant case appears to be much more compelling than it was in Battisfore.

Accordingly, we find that defendants did in fact owe plaintiff a duty of care in this case and that therefore the lower court erred in granting summary judgment.

Plaintiff also contends that defendants violated a statutory duty not to obstruct a public highway. Here, the basic issue becomes whether a genuine issue of material fact exists as to the location of defendants’ barrier relative to the Callahan Road right-of-way. In this regard, however, plaintiff’s position has been both inconsistent and incomplete.

In his complaint, plaintiff alleges, inter alia, that defendants were negligent in that they violated section 9 — 117 of the Illinois Highway Code (Ill. Rev. Stat. 1987, ch. 121, par. 9—117), which prohibits the injuring or obstructing of certain highways. In his initial appellate brief, however, plaintiff argues for the first time that defendants’ barrier constitutes a public nuisance in violation of section 221(5) of “An Act to revise the law in relation to criminal jurisprudence” (Ill. Rev. Stat. 1989, ch. 100½, par. 26(5)). Although he cites several cases for the general proposition that violation of certain statutes may be held to be prima facie evidence of negligence (see, e.g., Dini v. Naiditch (1960), 20 Ill. 2d 406), plaintiff has provided us with no pertinent authority, and precious little in the way of argument, relative to violations of the public nuisance statute. Plaintiff does not address the alleged Highway Code violation in his initial brief, other than to make a bare reference to the paragraph in his complaint where the violation was first alleged as an act of negligence. He provides no argument or citation to pertinent authority regarding violations of the Highway Code. In his reply brief, plaintiff continues to argue a violation of the nuisance statute, but in support thereof he cites, for the first time, to authority concerning a violation of the Highway Code. See Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78.

Of course, it is well settled that questions not raised in the trial court cannot be raised for the first time on appeal and are deemed waived. (George W. Kennedy Construction Co. v. City of Chicago (1986), 112 Ill. 2d 70, 77; Burys v. First Bank (1989), 187 Ill. App. 3d 384, 387-88.) In addition, points raised but not argued or supported with authority in a party’s brief are also deemed waived for purposes of review. (134 Ill. 2d R. 341(e)(7); People v. Dinger (1990), 136 Ill. 2d 248, 254; Burys, 187 Ill. App. 3d at 387-88.) A reviewing court is entitled to have issues clearly defined with pertinent authority cited and cohesive arguments presented, and arguments not adequately presented on appeal may be waived. (Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 401; Vincent v. Doebert (1989), 183 Ill. App. 3d 1081, 1087; Pecora v. Szabo (1982), 109 Ill. App. 3d 824, 825-26.) This court is not simply a depository in which plaintiff may dump the burden of argument and research. Pecora, 109 Ill. App. 3d at 826.

Here, plaintiff’s argument regarding the violation of a statutory duty consists of only two pages and gives us little assistance in our consideration of this issue. In light of the above principles, we conclude that, while the location of defendants’ barrier relative to the Callahan Road right-of-way constitutes a material factual dispute, the plaintiff has effectively waived any argument on appeal relevant to alleged violations of the Highway Code or the nuisance statute.

For the foregoing reasons, we conclude that defendants were not entitled to judgment as a matter of law and that the trial court improperly granted defendants’ motion for summary judgment. Having so concluded, we need not consider plaintiff’s remaining contention on appeal. The judgment of the circuit court of Lake County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

McLAREN, J., concurs.

PRESIDING JUSTICE REINHARD,

dissenting in part and specially concurring in part:

I believe the majority’s approach unduly expands the duty owed by landowners to travelers on adjacent highways. The majority finds that defendants, Eugene and Elizabeth Bauer, owed a duty of ordinary care to plaintiff, Michael Hutchings, who was driving his motorcycle along the highway adjacent to defendants’ property. In reaching this conclusion, the majority places its primary reliance on section 368 of the Restatement (Second) of Torts (hereinafter Restatement). Restatement (Second) of Torts §368, at 268 (1965).

Assuming that the horizontal log with which plaintiff collided was located entirely on defendants’ property, I do not believe that section 368, as interpreted by Illinois courts, places a duty of ordinary care on defendants. Although never adopted as the rule in Illinois, section 368 has been viewed as a persuasive presentation of the common-law rule regarding the duty of landowners to travelers on adjacent highways. (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 48. But see Cross v. Moehring (1989), 188 Ill. App. 3d 830, 832 (declining to follow section 368).) However, the duty of care embodied by section 368 applies only to foreseeable deviations from the roadway occurring in the ordinary course of travel. (Battisfore v. Moraites (1989), 186 Ill. App. 3d 180, 189.) The Restatement’s illustrations of the rule refer to artificial conditions “immediately adjacent to” or “within a few inches of” the highway. Restatement (Second) of Torts §368, Illustrations 1, 2, at 270-71 (1965).

Here, the point of impact was at least 21 feet from the edge of the roadway and at least 150 feet from the point plaintiff first left the road. Other Illinois Appellate Court cases have found artificial conditions on private property closer to the road to be outside the scope of the duty imposed under section 368. (Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721, 723 (utility pole placed 12 to 16 feet from the roadway); West v. Faurbo (1978), 66 Ill. App. 3d 815, 818 (striking concrete block four or five feet off public sidewalk when swerving to avoid a moving automobile is neither an incidental deviation from the sidewalk nor an ordinary incident of travel).) Although a landowner’s duty of care to those traveling on an adjacent highway can be extended to “those who stray a few feet from it inadvertently” (W. Keeton, Prosser & Keeton on Torts §57, at 389 (5th ed. 1984)), plaintiff’s significant departure from the roadway while traveling 10 miles per hour over the advised speed limit cannot be construed as an incidental deviation or an ordinary incident of travel.

The majority finds this case distinguishable from prior cases based on two factors: (1) the fact that plaintiff was travelling at the legal speed limit; and (2) the foreseeability of deviations from the road based on prior occurrences. I find neither factor determinative here.

First, plaintiff admits he was traveling at 10 miles per hour over the advisory speed limit of 25 miles per hour. The majority’s attention to the fact that 25 miles per hour speed limit was only advisory and not mandatory might be appropriate if this case were a prosecution for speeding. However, the speed at which plaintiff was advised he could safely travel is even more relevant than the actual speed limit. The advisory speed limit, which warned plaintiff not to drive faster than 25 miles per hour, is more directly related to the question of whether plaintiff was “traveling with reasonable care upon the highway.” Restatement (Second) of Torts §368, at 268 (1965).

Second, I find foreseeability based on prior occurrences to be of deceptively little importance in the instant scenario. Defendants placed the protective barrier on their property precisely because they foresaw that cars straying from the roadway could enter their property at a point along which defendants trained their horses almost every day. In fact, defendants asked the township to install a guardrail to protect them and their property, but the township declined to do so. Ironically, the foreseeability of cars leaving the roadway could also give rise to a duty on the part of defendants to erect a barrier in order to protect persons lawfully on their property. (See Ray v. Cock Robin, Inc. (1974), 57 Ill. 2d 19, 23.) The foreseeability of cars leaving the roadway cannot operate to impose a duty on defendants both to erect and not to erect a protective barrier.

The majority does not cite, nor has my own research discovered, a case applying section 368 of the Restatement wherein the obstruction complained of was explicitly designed in response to foreseeable deviations from the roadway. However, it is well established that the existence of a duty is not bottomed on foreseeability alone. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 375.) Courts must also consider the burden to the defendant of imposing a duty and the consequences of imposing this burden. (Ziemba, 142 Ill. 2d at 47.) The majority underestimates the burden its approach will place upon landowners. I fail to see, for example, the utility of suggesting that defendants should have imposed a break-away fence when the purpose of the fence was to stop cars from careening onto the horse track. I also find it inappropriate to suggest that landowners such as defendants should place protective fences farther back from the roadway. While the majority may find it easy to make such a suggestion to defendants, whose rural property comprises approximately 80 acres, we must be wary of adopting a rule which could also apply to urban landowners who have built to the very edge of their lot lines. See Cross, 188 Ill. App. 3d at 832.

Moreover, I feel that it is unwise to expand the very limited duty of abutting landowners into a more far-reaching duty to assure the general safety of travelers whenever they leave the roadway. The words of the Court of Appeals for the State of New York are instructive on this point:

“Carried to its logical conclusion, this rule would require a landowner to remove every tree, fence, post, mailbox or name sign located on his property in the vicinity of the highway, or permit them to remain, subject to possible liability. This, in our opinion, would impose an intolerable burden upon a property owner.
* * *
It is the continuing duty of the State or the municipality, not the abutting landowners, to maintain the highways and streets in a reasonably safe condition for ordinary use by the public. *** If the public right of way is too narrow, because of objects on the abutting land, the burden should fall upon the State to acquire additional property for its right of way ***.” Hayes v. Malkan (1970), 26 N.Y.2d 295, 299-300, 258 N.E.2d 695, 696-97 (refusing to extend a duty where the condition is on private property and not within the right-of-way).

The approach followed by the majority slights these concerns and, ironically, requires landowners to act in disregard of their own safety in order to protect the safety of others. I find that this would be an unduly burdensome responsibility to place upon landowners. I therefore dissent from the opinion of the majority insofar as it reverses summary judgment for defendants and holds that defendants owed a duty to plaintiff even if the collision occurred on their property.

In the present case, however, there are also- allegations that the obstruction with which plaintiff collided was within the right-of-way on Callahan Road. Plaintiff raised the issue on appeal and, in the trial court, supported this assertion by deposition testimony that two of the vertical posts erected by defendants extended into the right-of-way. Thus, a factual question has been raised as to whether the portion of the line of posts erected by defendants with which plaintiff either collided or attempted to avoid is located on the right-of-way. I believe that, if plaintiff collided with an obstruction placed in the right-of-way by defendants, then it would be for the jury to determine whether the placement of the object was such as to create an unreasonable danger for travelers on the highway. (See Kinsch v. Di Vito Construction Co. (1964), 54 Ill. App. 2d 149, 155 (concrete block placed on shoulder of the road); Hayes, 26 N.Y.2d at 298, 258 N.E.2d at 696.) Because there remains a material question of fact in this regard, I agree with the majority that the entry of summary judgment in favor of defendants must-be reversed, in part, as to the allegations based on this theory.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    THE PEOPLE ex rel. JAMES E. RYAN, State’s Attorney for the County of Du Page, Plaintiff-Appellant, v. THE VILLAGE OF VILLA PARK et al., Defendants-Appellees.
    Second District
    No. 2—90—0535
    Opinion filed April 10, 1991.
    Rehearing denied May 14, 1991.

      James E. Ryan, State’s Attorney, of Wheaton (Keith E. Letsche, Assistant State’s Attorney, of counsel), for appellant.
    John N. Pieper, Village Attorney, of Villa Park, for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

James E. Ryan, the State’s Attorney of Du Page County, brought an action on behalf of the People of the State of Illinois for injunctive and declaratory relief against the Village of Villa Park (Village) and several members of its board of trustees (Board), alleging that the Board held a closed meeting on February 22, 1988, in violation of the Open Meetings Act (Act) (Ill. Rev. Stat. 1989, ch. 102, par. 41 et seq.). The circuit court of Du Page County granted summary judgment to defendants on the basis that an exception to the Act applied because the acquisition of real estate was considered at the meeting. On appeal, plaintiff contends that the above exception, found in section 2(c) of the Act (Ill. Rev. Stat. 1983, ch. 102, par. 42(c)), only applies if a public body is involved in actual negotiations to purchase specific real estate; if the body is formulating the terms of an offer to acquire real estate; or if the body is conducting deliberations about an offer it intends to make, or an offer from a prospective seller. We reverse.

The relevant facts are not in dispute. On or about January 7, 1988, the Village manager of Villa Park, Paul Wenbert, found out about a program sponsored by the Forest Preserve District of Du Page County (Forest Preserve District) in which the district would consider proposals from municipalities to purchase land for flood control and recreational purposes. Within the next month, Wenbert found out that the Forest Preserve District expected participating municipalities to make financial contributions for land acquisition under the program. While Wenbert was attending a meeting with Forest Preserve District staff members during this period, he was told that no proposal from the Village would be considered unless it contained a commitment of Village funds.

The Villa Park Board of Trustees met in closed session on February 1, 1988, to discuss the Forest Preserve District conservancy program and areas of the Village that might be suitable for the program. Wenbert and William Boyd, the Village director of public works, told the Board about the requirements for participation which included submission of a proposal by the end of the month, payment of a portion of the costs of buying the property involved, committing Village funds for the proposal, and jointly developing any proposal with the City of Elmhurst.

The Board also discussed areas of the Village that might be included in the program. The discussion centered around a strip of land along Route 83 between the Illinois Prairie Path and Madison Street. The trustees spoke of preserving this area as a “greenbelt” and constructing an earthen berm along it which would hold back flood waters from the Salt Creek. An eight-foot-wide recreational path would be built atop the berm for walking, biking, jogging, and cross-country skiing. Boyd estimated that the fair market value of the property that would have to be acquired was $335,000. One trustee stated, however, that it could cost as much as $600,000 to obtain the land, a lengthy narrow strip which contained three houses. One member of the Board stated that, at a minimum, the Village would have to propose paying 25% of the land acquisition costs.

At the February 1 closed session, the trustees also talked about the possibility of closing off access to two streets from Route 83 near the site of the proposed “greenbelt berm” and the potential traffic problems that could result. They also discussed the possibility of having noise barriers constructed by the Department of Transportation along Route 83.

The Board held another closed meeting on February 22, 1988, during which it again discussed possible participation in the Forest Preserve District conservancy program. At this meeting, a report was presented from Village engineer Kenneth Magnus regarding the proposed greenbelt berm along Route 83.

The report concerning the greenbelt berm project states as follows. The berm was intended to protect 56 homes between Route 83 and Riverside Drive from flooding from the Salt Creek. A recreational path atop the berm could be used for various activities including jogging and bicycling. The berm would be approximately three-quarters of a mile long with a maximum height of six feet. It would be located along the west edge of the land to be obtained, which would total 7xk acres. This land consisted of 45 parcels of property, including 19 subdivided lots, and portions of the backyards of some homes located on Riverside Drive. The land contained three homes. The estimated market value of the land, including the homes, was $457,287.

The report further states that the greenbelt land would provide a location for the installation of a noise barrier along Route 83 and a visual barrier between the highway and the nearby residences. Additionally, it would be necessary to install a flap gate in a storm sewer on Highland Avenue to prevent Salt Creek backup past the berm. Total construction cost for the greenbelt berm project was estimated at $180,180. The Board directed that the greenbelt berm proposal as outlined in the report be submitted to the Forest Preserve District.

It is undisputed that there was no discussion at the February 1 or February 22 meetings as to how the property in question would be acquired or what titled interest, if any, the Village would receive. Village representatives did not discover until March 10, 1988, that they would be responsible for obtaining title to the property.

In plaintiff’s amended complaint, it was alleged that defendants violated the Act by holding the closed session on February 22. Plaintiff sought a declaratory judgment to that effect along with injunctive relief to prohibit future violations. Plaintiff and defendants filed cross-motions for summary judgment. The trial court denied plaintiff’s motion and granted defendants’ on the basis that a closed session was proper under section 2(c) of the Act (Ill. Rev. Stat. 1989, ch. 102, par. 42(c)) because potential land acquisition was discussed. Plaintiff now appeals.

Although summary judgment is a drastic remedy which should only be employed if the right of the movant is free from doubt (Purtill v. Hess (1986), 111 Ill. 2d 229, 240), it is appropriate when the parties agree on the material facts, and they only dispute the legal effect of those facts. (Hagy v. McHenry County Conservation District (1989), 190 Ill. App. 3d 833, 842.) In the present case, the parties do not dispute the relevant facts; they only differ as to whether, under that state of facts, defendants violated the Act. Therefore, this was a proper case for summary judgment although a question remains as to whether plaintiff should have been granted summary judgment instead of defendants.

Section 2 of the Act states in relevant part as follows:

“All meetings of public bodies shall be public meetings except for *** (c) meetings where the acquisition of real property is being considered ***.
* * *
Only those portions of any meeting expressly enumerated herein as exceptions may be closed. No final action may be taken at a closed meeting.” (Ill. Rev. Stat. 1989, ch. 102, par. 42.)

Section 1 states it is the intent of the Act that public bodies conduct their deliberations and take their actions openly. (Ill. Rev. Stat. 1989, ch. 102, par. 41.) Since the exceptions set forth in section 2 to the general rule of open meetings are in derogation of this expressed intent these exceptions should be construed narrowly. Illinois News Broadcasters Association v. City of Springfield (1974), 22 Ill. App. 3d 226, 228.

Plaintiff contends that the exception set forth in section 2(c) of the Act only applies if a public body is formulating the terms of an offer to acquire real estate, deliberating on the terms of an offer to sell real estate made to that body, discussing strategies for acquiring real estate, or discussing pending negotiations for the purchase of real estate by that body. According to plaintiff, a narrow construction of section 2(c) is in accord with the intention expressed in section 1.

Defendants argue that such a narrow construction of section 2(c) would hamper the public in many instances. With regard to the instant case, defendants contend that disclosing the Village’s potential interest in the real estate may have led to land speculation which would have increased its fair-market value. Additionally, defendants note that the Board discussed estimates of the fair-market value of the land on February 1 and 22, and disclosure of the Board’s estimates may have affected its negotiating position.

A statute should be construed to give effect to the intention of the legislature. (Gosnell v. Hogan (1989), 179 Ill. App. 3d 161, 170.) Since the language of a provision is the best indication of the drafters’ intent, if that language is unambiguous, the plain and ordinary meaning of that language will be given effect. (See Maloney v. Bower (1986), 113 Ill. 2d 473, 479.) If there is an ambiguity, however, other aids in construction may be considered, including the reason for the law, the purpose sought to be achieved through its passage, and the evils sought to be remedied. See American Country Insurance Co. v. Wilcoxon (1989), 127 Ill. 2d 230, 239; Chastek v. Anderson (1981), 83 Ill. 2d 502, 511.

The parties appear to agree that the language of section 2(c) which exempts from the general rule of public meetings, “meetings where the acquisition of real property is being considered” (Ill. Rev. Stat. 1989, ch. 102, par. 42(c)), is ambiguous. In our view, this exception can reasonably be construed in the more expansive manner suggested by defendants. This would permit closed meetings to be held whenever specific real estate was to be discussed in connection with a proposed governmental program or project which was being considered that would require the acquisition of real estate.

The language can also reasonably be construed in the manner suggested by plaintiffs. Under this interpretation, since the Board in its February 1988 closed meetings did not discuss how it would try to obtain the property, or the terms of any offer or potential offer to purchase it, the exception would not apply. Thus, under this interpretation, while the Board discussed including the land in the conservancy program, and may have considered attempting to acquire it, the Board did not yet consider actually acquiring it at this preliminary stage in the absence of a discussion of the aforementioned matters. We therefore conclude that section 2(c) is ambiguous.

In light of this ambiguity, we will consider which interpretation best achieves the objectives the legislature sought to attain in passing the Act, and which interpretation best remedies the evils the legislature sought to be eliminated. As we have seen, section 1 states it is the intent of the Act that deliberations of public bodies be conducted openly (Ill. Rev. Stat. 1989, ch. 102, par. 41). Furthermore, after section 2 lists the exceptions to the general rule of open public meetings, it states, “[o]nly those portions of any meeting expressly enumerated herein as exceptions may be closed.” (Ill. Rev. Stat. 1989, ch. 102, par. 42.) The legislature clearly sought to permit closed meetings only when absolutely necessary.

When public bodies hold closed meetings, the possibility of citizen input on the matters discussed at the meeting is eliminated. Closed meetings may also make it easier for public officials to shield themselves from public accountability for views expressed or actions taken at the meeting. The drafters of the Act recognized the value of citizen input and participation in government in a democratic society and therefore sought to remedy the above evils.

In the case at bar, the Board discussed matters at the February 1 and 22 closed sessions that were of great significance to Villa Park citizens. The proposed construction of the greenbelt berm, the proposed sewer flap gate, and the potential land acquisition would have involved a large expenditure of Village funds. Obviously, efforts at flood control in regions such as the Salt Creek area where flooding is a major concern are of tremendous importance to affected landowners. The Board also discussed other matters of interest to the citizenry such as potentially closing off access from a couple of side streets to Route 83 and having a noise barrier constructed along Route 83.

Defendants argue that the closed meetings were necessary because disclosure of the Village’s potential interest in obtaining the land in question may have led to land speculation which could have driven up the value of the property. Although there is some validity to this concern, we believe it is outweighed by other concerns. If a public agency decides to try to purchase property, it must eventually disclose this desire to the owner. This makes it impossible to eliminate the potential danger of land speculation. Furthermore, such disclosure does not necessarily drive up the value of property; it may have the opposite effect, or no effect.

Adopting defendants’ position would mean that public agencies could hold closed meetings any time they discussed programs or projects that necessarily involve land acquisition, as long as they mentioned specific parcels that might be obtained. This is precisely what occurred in this case, as the Village trustees went behind closed doors, discussed participation in a significant intergovernmental program, and decided to submit a proposal for participation in the program. Defendants’ logic could lead to foreclosure of public debate on significant matters such as airport expansion and construction of stadia for sports franchises. This is completely contrary to the objectives of the Act.

Moreover, in some instances, disclosure of the location of land that might be obtained for a project or program could serve the public interest by spurring public debate over matters such as whether the land is suitable for the project, whether other land may be less expensive or more suitable, and whether other concerns exist which indicate the present use of the land should be maintained. Because of these factors, we conclude plaintiff’s interpretation of section 2(c) is consistent with the Act’s objectives, and we therefore adopt that interpretation. The exemption in section 2(c) of the Act only applies if public agencies are discussing formulating the terms of an offer to purchase specific real estate or discussing the seller’s terms, or if it is considering strategy for obtaining specific real estate. Our position is consistent with the holding of the Missouri Appellate Court in Tipton v. Barton (Mo. App. 1988), 747 S.W.2d 325. In Tipton, the court interpreted a similar exception in the Missouri Open Meetings Act and stated, “the actual terms of any real estate transaction or a negotiating position of the city is not disclosed ***, and a mere reference to a real estate transaction is not sufficient to trigger [the exception].” Tipton, 747 S.W.2d at 331.

It is undisputed that the aforementioned matters were not discussed at the February 1 or February 22 meetings. Therefore, defendants violated the Act, and summary judgment should have been granted to plaintiff. We therefore reverse the order of the circuit court of Du Page County granting summary judgment to defendants and remand the cause with instructions to grant plaintiff’s motion for summary judgment. The relief granted shall include a declaration that the Board violated the Act by holding a closed meeting on February 22, 1988, and an injunction prohibiting future violations of the Act by the Board and any individual defendants who are still trustees.

Defendants assert that such relief is not appropriate because, even if they violated the Act, the exception set forth in section 2(c) is somewhat vague. We conclude, however, that the two February 1988 closed sessions in which vital matters were discussed clearly contravened the objectives of the Act. Moreover, defendants in this case made no attempt to comply with the Act by limiting their closed session discussion to matters they may have believed were within the section 2(c) exception. Instead, they were discussing matters clearly outside the exception, such as closing off access to Route 83 from certain streets, having a noise barrier built along Route 83, and installing a sewer flap gate. For these reasons, we find that declaratory and injunctive relief is necessary.

Reversed and remanded with directions.

UNVERZAGT and NICKELS, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SANDRA MILLER, Defendant-Appellee.
    Second District
    No. 2—90—0484
    Opinion filed April 17, 1991.
    Rehearing denied May 17, 1991.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

The State appeals pursuant to Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)) from an order of the circuit court of Du Page County granting a motion to quash arrest and suppress evidence filed by defendant, Sandra Miller. The sole issue raised on appeal is whether the trial court erred in granting defendant’s motion to quash and suppress because there was probable cause to arrest defendant.

Defendant was charged by indictment with the offense of unlawful possession of less than 15 grams of a substance containing cocaine (Ill. Rev. Stat. 1987, ch. 56½, par. 1402(b)). Defendant filed a motion to quash her arrest, alleging that, at the time of the arrest, the police officer did not have probable cause to believe that a crime was committed. She also apparently requested that evidence connecting her with the crime be suppressed pursuant to the exclusionary rule, citing Mapp v. Ohio (1961), 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684.

Robert James Nicholas, a police officer with the City of Elmhurst, was the only witness to testify at the hearing regarding defendant’s motion. Nicholas testified that, on June 16, 1989, he was working a plainclothes detail with Officer Dominic Pánico. He testified that they were in the parking lot where the Diplomat West banquet facility is located, observing the parking lot to make sure the lot was kept safe and secure. At approximately 9:05 p.m., while he and Pánico were walking through the parking lot, Nicholas observed a vehicle in the lot with its dome light on. He saw that the two people in the vehicle had their heads down and that there were some rapid upper body movements. He stated that, based on his training and experience as a police officer, those movements indicated to him “that they could have either been cutting or ingesting cocaine or possibly even doing the same with marijuana.” He and Pánico continued walking toward the vehicle. Before they were able to reach the vehicle, Nicholas saw a man and woman exit the vehicle and enter the Diplomat West. The two people were later identified as defendant and Scott Swensen.

Approximately five minutes later, Nicholas observed Swensen and another woman come out of the Diplomat West and enter a different car. He and Pánico walked up behind the vehicle, and he observed the dome light on. The two people’s heads went down and there was some movement. Nicholas then walked up to the passenger side of the vehicle, and Pánico approached the driver’s side. Nicholas looked into the vehicle and saw that the person sitting in the driver’s seat, later identified as Miss Parquette, was holding a snow seal in her hand. Nicholas testified that a snow seal is a little envelope used to package cocaine. He opened the snow seal, and there was a white, powdery substance inside.

Parquette and Swensen were each placed in the backseat of a different squad car. Nicholas spoke with Parquette, after advising her of her rights. Parquette told him that she had come from Oklahoma for a wedding. She stated that some friends had called her and asked her to bring cocaine with her, and she brought approximately 21k grams of cocaine. She told Nicholas that she was in the process of selling cocaine to Swensen when the officers looked in the car.

Nicholas testified that Parquette also stated that, a day or two prior to the wedding, she had given defendant a snow seal containing cocaine. She told Nicholas that defendant had some cocaine on her and “it was the coke that she had given her.” Parquette did not say where defendant had the cocaine, but “[s]he just said that she had it with her,” that “[s]he had it with her that night.”

Nicholas testified that he also spoke to Swensen, after Swensen was advised of his rights. Swensen told him that defendant was his girlfriend. Nicholas asked him if he and defendant had been “snorting” cocaine in Swensen’s vehicle before entering the Diplomat West, and Swensen indicated that they had used cocaine at that time. Swensen also told Nicholas that defendant “had possessed the cocaine, or what was left of what they had used in the vehicle.” Swensen did not say where defendant had the cocaine. Nicholas testified that “[h]e had just said that she had it on her. He wouldn’t be specific.”

Nicholas stated that he had never met Swensen or Parquette before and that they were never informants for him on any other drug transactions.

Nicholas testified that he then entered the Diplomat West. He asked one of the managers to find defendant in one of the banquet rooms because he “wanted to go inside and retrieve the cocaine that she had.” Defendant came to the door with the manager, and Nicholas asked her to step outside. Nicholas explained to defendant that her boyfriend and Parquette had been arrested for possession of cocaine. Nicholas told defendant that Swensen had informed him that she had some cocaine on her and that Parquette told him that Parquette had given her some cocaine a couple of days before. He then told defendant that she was part of the investigation for the possession of the cocaine. He told defendant he would like her purse and removed the strap of her purse from her shoulder. He opened the purse and saw a snow seal in an open pouch. He then arrested her for unlawful possession of cocaine.

Nicholas specifically stated that he did not have a warrant and that defendant was not placed under arrest before he searched her purse. He stated that the search of the purse was part of his investigation. He also stated that he did not see any white powder on defendant’s person and did not personally see her ingest any cocaine.

Following this testimony, defense counsel argued that there was no probable cause for the search because the statements of Swensen and Parquette lacked specificity and detail, noting that they did not say that contraband could be found in defendant’s purse. The State argued that probable cause was established by the reliable statements of Swensen and Parquette which were corroborated by the officer’s own observations of defendant in the car. The State referred to the “Ross case” which it noted was factually close to this case, but involved an anonymous tip and insufficient corroboration. A citation to Ross is not contained in the record. The trial judge summarized Nicholas’ testimony and noted that the facts were very close to the facts in the “Ross case.” The trial judge noted that defendant was not under arrest when searched. He then determined that the evidence was not sufficient to establish that Nicholas had probable cause to effectuate an arrest at the time defendant’s purse was searched. He therefore granted defendant’s motion. The State filed a motion to reconsider. The court denied the motion, noting that, as there was no exigency or emergency situation, there was sufficient time for either a search warrant or a warrant of arrest to be obtained. The State filed a certificate of impairment and a timely notice of appeal.

The State argues on appeal that defendant’s motion should not have been granted because “the information that Officer Nicholas received from Swensen and Parquette stating that the defendant possessed cocaine, in conjunction with the officer’s earlier observation of the defendant and Swensen, was sufficiently reliable to rise to the level of probable cause to detain the defendant, search her purse and arrest her for the possession of a controlled substance.” The State contends that the reliability of the information provided was sound, as both Swensen and Parquette admitted direct involvement with the cocaine. The State relies on Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, People v. Tisler (1984), 103 Ill. 2d 226, and People v. Stout (1985), 106 Ill. 2d 77, as setting forth the standards applicable to a probable cause determination. The State has not cited the Ross case relied upon by the trial court in making its ruling. (People v. Ross (1985), 133 Ill. App. 3d 66.) The State has also provided no citation to authority regarding the correct standard to be applied in this type of situation where the warrantless search occurred prior to the arrest.

Defendant has not filed a response brief in this case, so we examine this appeal pursuant to the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128. The Talandis court held that reversal should not be automatic when an appellee does not file a brief. The court stated that when “the record is simple and the claimed errors are such that the court can easily decide them without the aid of an appellee’s brief, the court of review should decide the merits of the appeal.” (Talandis, 63 Ill. 2d at 133.) If the case is not simple, however, “a court of review should [not] be compelled to serve as an advocate for the appellee.” (Talandis, 63 Ill. 2d at 133.) On first blush, because of the muddled briefing by the State, the issues here appear complex. However, our independent research indicates that the issues raised can be simply resolved on their merits.

A reviewing court will not disturb a trial court’s ruling on a motion to suppress unless it is manifestly erroneous. (People v. Adams (1989), 131 Ill. 2d 387, 400.) However, with respect to a motion to suppress evidence, a defendant has the burden of proving that the search and seizure were unlawful. Ill. Rev. Stat. 1989, ch. 38, par. 114—12(b); People v. Hoskins (1984), 101 Ill. 2d 209, 212; People v. Perry (1990), 204 Ill. App. 3d 782, 785.

• 3 The State is correct that the issue is whether probable cause to arrest defendant existed at the time defendant’s purse was searched because, as long as there was probable cause for the arrest, the search is .justified as a search incident to the arrest. A search incident to an arrest does not have to occur subsequent to the arrest but may be made immediately prior to the arrest (Rawlings v. Kentucky (1980), 448 U.S. 98, 111, 65 L. Ed. 2d 633, 645-46, 100 S. Ct. 2556, 2564; People v. Rossi (1981), 102 Ill. App. 3d 1069, 1072-73), so long as the fruits of the search were not necessary to support probable cause to arrest (Rawlings, 448 U.S. at 111 n.6, 65 L. Ed. 2d at 646 n.6, 100 S. Ct. at 2564 n.6; Rossi, 102 Ill. App. 3d at 1073; see also 2 W. LaFave, Search & Seizure §5.4(a), at 515-17 (2d ed. 1987)).

Section 108 — 1 of the Illinois Code of Criminal Procedure of 1963 (Code) provides:

“When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of:
(a) Protecting the officer from attack; or
(b) Preventing the person from escaping; or
(c) Discovering the fruits of the crime; or
(d) Discovering any instruments, articles, or things which may have been used in the commission of, or which may constitute evidence of, an offense.” Ill. Rev. Stat. 1989, ch. 38, par. 108-1(1).

The question is, therefore, whether the arrest was lawful. Section 107 — 2 of the Code states:

“A peace officer may arrest a person when:
(a) He has a warrant commanding that such person be arrested; or
(b) He has reasonable grounds to believe that a warrant for the person’s arrest has been issued in this State or in another jurisdiction; or
(c) 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(1).

Therefore, a warrantless arrest may be valid when a peace officer has reasonable grounds to believe that a person is committing or has committed an offense. (People v. Holveck (1990), 141 Ill. 2d 84, 95.) The supreme court has held that the “reasonable grounds” standard is synonymous with “probable cause.” (Holveck, 141 Ill. 2d at 95.) Thus, if there was probable cause to arrest defendant at the time her purse was searched, the search of the purse was a valid search incident to the arrest.

In making a probable cause determination in cases involving an informant’s tip, Illinois courts apply the totality-of-the-circumstances test of Illinois v. Gates (1983), 462 U.S. 213, 230-31, 76 L. Ed. 2d 527, 543-44, 103 S. Ct. 2317, 2328-29, which the supreme court adopted in People v. Tisler (1984), 103 Ill. 2d 226, 245-46. (People v. House (1990), 141 Ill. 2d 323, 370.) Probable cause exists when the totality of the facts and circumstances known to the officer making the arrest is such that a reasonably prudent person would believe that the suspect is committing or has committed a crime. (People v. Montgomery (1986), 112 Ill. 2d 517, 525; People v. Crest (1989), 188 Ill. App. 3d 768, 775.) Probable cause need not be based on evidence sufficient to convict (People v. Neal (1985), 111 Ill. 2d 180, 193), and the calculation concerns the probability of criminal activity and not proof beyond a reasonable doubt. House, 141 Ill. 2d at 370.

“In determining whether the officer had probable cause, the officer’s factual knowledge, based on his prior law-enforcement experience, is relevant.” (Tisler, 103 Ill. 2d at 237.) Our supreme court has stated that “ ‘[w]hen a police officer has proceeded without a warrant to search, seize evidence, or arrest a person, the trial court making a probable-cause determination is to apply standards at least as stringent as those that guide a magistrate in deciding whether to issue a warrant.’ ” (People v. Adams (1989), 131 Ill. 2d 387, 398, quoting Tisler, 103 Ill. 2d at 236.) The review must therefore center on the information that was available to the officer before the search or arrest. Adams, 131 Ill. 2d at 398.

If facts supplied by an informant are essential to a finding of probable cause, the information supplied must meet standards of reliability before it can be considered in determining probable cause. (Tisler, 103 Ill. 2d at 237.) “One indicia of reliability of information is found in admissions against the penal interests of the party giving the information. Courts and commentators have observed that admissions against penal interest may, by their very nature, possess inherent indicia of reliability.” (People v. James (1987), 118 Ill. 2d 214, 223, citing United States v. Harris (1971), 403 U.S. 573, 583-85, 29 L. Ed. 2d 723, 733-35, 91 S. Ct. 2075, 2082-83, and 1 W. LaFave, Search & Seizure §3.3(c), at 643-59 (2d ed. 1987); see also People v. Bell (1989), 191 Ill. App. 3d 877, 883; People v. Paine (1988), 182 Ill. App. 3d 812, 818.) The court in James noted that this type of situation is different from the scenario in cases such as Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, where the information came from an anonymous informer. In that type of case, an independent showing of reliability is required. (James, 118 Ill. 2d at 223-24.) The court determined that, in some situations, uncorroborated statements by an arrestee can constitute probable cause for the arrest of a co-offender. James, 118 Ill. 2d at 222.

The court in James then held that there was probable cause to arrest the defendant in that case based on information supplied by a co-offender which was supported by the independent verification of a substantial part of his statement by the facts learned through police investigation. (James, 118 Ill. 2d at 225.) The court noted that the informer “admitted his own involvement in the crimes, something which common sense indicates one does not do lightly or falsely. Thus, the overall reliability of his statements is enhanced.” (James, 118 Ill. 2d at 224.) The court also noted that there was nothing in the record to indicate that the informer was offered any specific inducement or “deal” for identifying the accomplices. James, 118 Ill. 2d at 224.

Similarly, the supreme court recently decided in People v. House (1990), 141 Ill. 2d 323, that information supplied by a co-offender was sufficiently reliable to furnish probable cause to arrest the defendant for murder. (House, 141 Ill. 2d at 369-70.) The court again noted that the informer admitted his own involvement in the crimes, that the record did not reveal that he was offered any inducement for identifying his accomplices and that there was independent verification of a substantial part of his statement. House, 141 Ill. 2d at 369-70.

In this case, both Swensen and Parquette made statements against their penal interest and also implicated defendant. We note that, in making its decision, the trial court accepted Nicholas’ testimony and did not question Nicholas’ credibility. Nicholas testified that Parquette stated that she gave defendant cocaine one or two days before and that defendant had cocaine on her that night. He also testified that Swensen stated that he and defendant had used cocaine earlier and that defendant still had the remainder of the cocaine in her possession. Swensen’s statement was consistent with Nicholas’ previous observation of defendant and Swensen in the car. Under these circumstances, although Parquette’s and Swensen’s statements lacked specificity and detail, the statements were sufficient to establish probable cause because both co-offenders gave consistent information which was corroborated, to some degree, by the police officer’s prior observations. There was also no testimony presented indicating that either Swensen or Parquette was offered any inducement for giving information about defendant.

We also note that the case relied on by the trial court, People v. Ross (1985), 133 Ill. App. 3d 66, is easily distinguishable. There are factual similarities, including the fact that both searches took place at the Diplomat West. However, in Ross, the police officers received information from an anonymous informant who stated that the defendant was selling cocaine at the Diplomat West. The informant described the defendant and provided a description of the defendant’s car and license plate number. He stated that the defendant would get the cocaine from his car, put it in his jacket pockets and sell it in the reception area of the Diplomat West. Ross, 133 Ill. App. 3d at 68-69.

The police officers located the defendant’s car, determined that a wedding reception was being held at the Diplomat West, and then told the manager to find the defendant and bring him to the office. They did not observe the defendant to verify the information provided by the anonymous informant. The defendant was then searched and cocaine was found. Subsequently, he was arrested. The court in Ross specifically found that it was not a proper search incident to arrest because “the fruits of the search thus support and were the basis of probable cause to arrest.” (Ross, 133 Ill. App. 3d at 70.) The court also found that the Search was not justified based on the existence of probable cause that evidence would be found in a search plus exigent circumstances. Ross, 133 Ill. App. 3d at 70-73.

In this case, two co-offenders stated that defendant was in possession of cocaine. One of the co-offenders, Parquette, was in possession of cocaine at the time she was arrested and stated that she had given cocaine to defendant. The other co-offender, Swensen, stated that he and defendant had been using cocaine earlier and that defendant was in possession of the remainder of the cocaine. This was consistent with Nicholas’ earlier observations. Under these circumstances, we find that there was probable cause to arrest defendant at the time her purse was searched and that the fruits of the search were not the basis of probable cause to arrest. Defendant did not meet her burden of proving that the search was unlawful.

For the foregoing reasons, the trial court’s order granting defendant’s motion to quash her arrest and suppress evidence was manifestly erroneous and is reversed.

The judgment of the circuit court of Du Page County is reversed, and this cause is remanded.

Reversed and remanded.

INGLIS and GEIGER, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    MYRTLE BABBITT, Plaintiff-Appellant and Cross-Appellee, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee and Cross-Appellant.
    Third District
    No. 3—90—0518
    Opinion filed April 25, 1991.
    Ronald Henson, of Barash, Stoerzbach & Henson, of Galesburg (John W. Robertson, of counsel), for appellant.
    Arthur R. Kingery and Lindsay W. Wright, both of Strodel, Kingery & Duree, Associated, of Peoria, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This case arose out of a motor vehicle accident in Galesburg, Rlinois. The plaintiff, Myrtle Babbitt, filed suit against the defendant, United Parcel Service (UPS), for personal injuries she sustained when the taxi in which she was a passenger rammed into a light pole. A jury in the circuit court of Knox County rendered a verdict in favor of the defendant. The plaintiff appeals.

On appeal, the issue we address is whether the trial court correctly interpreted section 1 — 156 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 95½, par. 1-156).

On January 29, 1989, the plaintiff was a passenger in a taxi heading north on Seminary Street in Galesburg. The taxi encountered a delivery truck owned and operated by the defendant, UPS. The truck was located on the east side of the street in the northbound lane. The driver of the UPS vehicle was at the time of the accident engaged in the process of making a delivery on the west side of the street. Hi attempting to pass the truck, the taxi maneuvered into the southbound lane and, being confronted with oncoming traffic, swerved back into the northbound lane. As a result, the taxi driver lost control of the taxi and it jumped a curb, hitting a light pole and resulting in injuries to the plaintiff.

The plaintiff filed suit against the defendant alleging various counts of negligence. Before trial, the defendant filed a motion for summary judgment praying that the trial court find as a matter of law that the UPS truck was not violating either the applicable Illinois statute or the Galesburg city ordinance regarding parking. The trial court granted the defendant’s motion for summary judgment.

We find the trial court correctly interpreted the applicable statute. The construction of a statute is a question of law to be determined by the court. (Berrios v. Rybacki (1989), 190 Ill. App. 3d 338, 546 N.E.2d 651.) When statutory language is certain and unambiguous, it is not proper for a court to depart from the plain meaning by reading into the statute exceptions, limitations, and conditions which conflict with the legislative intent; furthermore, judicial interpretation should not result in absurd conclusions or manifest injustice. Helland v. Larson (1985), 138 Ill. App. 3d 1, 485 N.E.2d 457.

Section 1 — 156 of the Code defines park or parking as follows:

“Means the standing of a vehicle, whether occupied or not, otherwise than when temporarily and actually engaged in loading or unloading merchandise or passengers.” (Ill. Rev. Stat. 1989, ch. 95½, par. 1-156.)

It should be noted that the Galesburg ordinance is virtually identical to the Illinois statute.

In the instant case, the plaintiff claims that it is “obvious” that the language regarding occupation of a vehicle applies only to the first part of the sentence, regarding the standing of a vehicle, but not to the second part of the sentence, regarding actually engaged in loading or unloading. It appears from this argument that the plaintiff means to infer in the statute a requirement that the vehicle must be occupied at all times even during the delivering and unloading stages.

It is sophistry to interpret the statute as requiring all delivery trucks be manned by two individuals; one to unload the truck and one to remain in the truck while the truck was being unloaded. Other States, interpreting similar statutes, have ruled that “making a delivery” is synonymous with “unloading” for purposes of the parking statute exemption. See Logan v. Margolis (1967), 5 Ariz. App. 183, 424 P.2d 831; Rieck-McJunkin Dairy Co. v. George (1948), 162 Pa. Super. 132, 56 A.2d 261.

Accordingly, because the other issues raised by the plaintiff on appeal are contingent upon this court finding the trial court erred in interpreting the parking statute, we need only address that issue for we find the trial court correctly interpreted the statute. For this reason, we affirm the circuit court of Knox County.

Affirmed.

BARRY and GORMAN, JJ., concur.


text:
    OURANIA K. GLEASON, Plaintiff-Appellee, v. JON M. CARTER, Defendant-Appellant and Counterplaintiff (Fred N. Ranck, Defendant and Counterdefendant).
    Second District
    No. 2—90—0934
    Opinion filed April 16, 1991.

      John M. Carter and Raymond M. Blacklidge, both of Grief, Bus & Blacklidge, and Robert A. Mankivsky, both of West Chicago, for appellant.
    David Drenk and Christopher J. Stoll, both of Leoris & Cohen, P.C., of Highland Park, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

After a jury trial limited to the issue of damages, plaintiff, Ourania K. Gleason, was awarded $10,544 as damages against defendant, Jon M. Carter. The trial court also granted plaintiff’s post-trial motion for costs and taxed $689.85 as costs against defendant. Jon Carter’s sole issue on appeal is whether the circuit court erred in awarding $148 as costs to plaintiff for the transcription of defendant’s deposition taken by plaintiff. We affirm.

This incident arose out of a car accident that occurred on May 21, 1987, in Glen Ellyn, Illinois. Plaintiff filed suit against defendant claiming negligence.

The cause was set for trial on June 18, 1990. On June 12, 1990, plaintiff served defendant with a Supreme Court Rule 237(b) (134 Ill. 2d R. 237(b)) notice to produce defendant at trial. Defendant apparently lived in Georgia. Shortly after plaintiff served its Supreme Court Rule 237(b) notice, plaintiff paid $148 to have defendant’s January 19, 1990, deposition transcribed.

On the morning of the trial, defendant’s attorney related defendant would not be complying with the Supreme Court Rule 237(b) notice to produce at trial and would not be appearing for trial, and, therefore, defendant was admitting liability. Thus, the jury trial on June 18 and 19, 1990, was concerned only with the amount of damages. On June 20, 1990, the jury awarded plaintiff damages in the amount of $10,544.

On July 17, 1990, plaintiff filed a post-trial motion in which she asked for costs of $689.85. Included in this amount was the sum of $148 — the amount paid to have defendant’s deposition transcribed prior to trial. On August 2, 1990, the trial court granted plaintiff’s post-trial motion to tax certain costs against defendant which included the $148 transcription fee. The defendant timely appealed.

The defendant’s sole issue upon appeal is whether the trial court abused its discretion in taxing defendant with the $148 incurred by plaintiff for transcribing defendant’s deposition.

At common law, a successful litigant was not allowed to recover from his opponent the cost of pursuing his litigation. (Galowich v. Beech Aircraft Corp. (1982), 92 Ill. 2d 157, 162 (Galowich I).) Therefore, there must be statutory authority before costs may be allocated to the losing party, and any costs that are assessed are limited to those specifically allowed by statute. (Galowich, 92 Ill. 2d at 162.) Under section 1 — 105 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 1—105), the supreme court may provide by rule for the assessment of costs. Supreme Court Rule 208(d) (134 Ill. 2d R. 208(d)) provides that a trial court may in its discretion tax deposition “fees and charges” as costs.

In Galowich I, the supreme court interpreted Supreme Court Rule 208(d) “as authorizing the trial court to tax as costs, in its discretion, the expenses only of those depositions necessarily used at trial.” (Emphasis added.) (Galowich, 92 Ill. 2d at 166.). In Galowich I the plaintiffs voluntarily dismissed their suit prior to trial, but the trial court still taxed the plaintiffs with the cost of defendant’s depositions. The supreme court refused to allow the plaintiffs to be taxed with defendant’s deposition costs. The court reasoned the depositions were not necessary for use at trial because there was no trial.

Galowich I has been continually cited in cases where a plaintiff has voluntarily dismissed suit prior to trial. See In re Petition of the Village of Kildeer to Annex Certain Territory (1989), 191 Ill. App. 3d 713; Howell v. Thompson (1987), 161 Ill. App. 3d 466.

Defendant argues, although there was a trial, defendant never testified and, therefore, the deposition was never used. Thus, under Galowich I, the defendant argues the defendant’s deposition was not “necessarily used” at trial and the trial court abused its discretion in taxing the cost of the deposition against the defendant.

The award of costs and fees will not be disturbed on review unless it is a clear abuse of discretion. (Perlman v. Time, Inc. (1985), 133 Ill. App. 3d 348, 355.) Supreme Court Rule 208(d) specifically states that a trial court has discretion in taxing the cost of depositions. Even Galowich I, while narrowing a trial court’s discretion under Supreme Court Rule 208(d), still recognizes that a trial court has discretion in taxing those costs of depositions necessarily used at trial.

Defendant cites cases in which the causes did go to trial. In these cases the trial courts taxed the losing parties with the cost of their opponents’ depositions. However, on appeal the appellate court reversed the trial courts’ decisions. Thus, defendant argues, the trial court’s decision in this cause was “contrary to established law and should be reversed.”

In Falkenthal v. Public Building Comm’n (1982), 111 Ill. App. 3d 703, the trial court seemed unwilling to tax the defendant with the cost of depositions when they were only described as discovery depositions by the plaintiff. However, the court did not specifically decide whether the cost could be taxed against the defendant because the court determined that the plaintiff’s request for costs had been too vague at the trial court level for the trial court to make a proper determination and, therefore, vacated the order awarding costs and remanded the cause for further proceedings to determine whether the costs were properly documented and supported by statute or a court rule.

In Galowich v. Beech Aircraft Corp. (1991), 209 Ill. App. 3d 128 (Galowich II), the Appellate Court for the First District made a more detailed determination of what the supreme court meant by the word “necessary.” In Galowich II, the plaintiffs from Galowich I refiled their lawsuit, and, after a trial on the merits, the court entered judgment for the defendants. The defendants then filed a motion which in part asked for the cost of their depositions to be taxed against the plaintiffs. The trial court granted this motion. However, the appellate court held that, although the defendant had used the depositions during trial for impeachment purposes, the appellate court was not going to adopt a rule stating that because depositions were used for impeachment purposes, the depositions became “ipso facto necessary.” (Galowich, 209 Ill. App. 3d at 142.) The court held that the trial court still needed to make an independent determination that the deposition was necessary.

In the case at bar, the trial court did make an independent determination that the deposition was necessary. The trial court wrote an opinion letter explaining why it had taxed the cost of transcribing the deposition to defendant. In it, the trial court explained that the “defendant’s deposition was ‘used’ and ‘necessary’ because the plaintiff could have read admissions' from the discovery deposition in the absence of the defendant but that was obviated by the defendant’s consent to liability.” The trial court was concerned that defendant had violated the Supreme Court Rule 237(b) notice to produce at trial and, but for this violation, defendant’s deposition would have been used and necessary during defendant’s testimony.

Under the narrow circumstances of the facts of this case we do not find that the trial court abused its discretion. The trial court made a finding that defendant’s deposition was used and necessary at trial and only because defendant violated his Supreme Court Rule 237(b) notice to produce at trial and admitted liability to avoid the sanctions for noncompliance was the deposition not actually “used.” This holding does not violate the holding in Galowich I because, as we noted above, Galowich I does not deprive a trial court of discretion and because, consistent with Galowich I, the trial court reasonably determined the deposition was “necessarily used.”

We further note that the supreme court in Galowich I stated, as one of its policy reasons for limiting the discretion of a trial court in taxing deposition costs against an opponent, that it wanted to avoid the situation where parties took unnecessary discovery depositions and then under the provisions of Supreme Court Rule 208(d) forced the opposing party to pay for them. (See Galowich, 92 Ill. 2d at 167.) Here, we have the opposite side of the problem. Defendant, by violating his Supreme Court Rule 237(b) notice to produce at trial and admitting liability to avoid sanctions, forced plaintiff to incur unnecessary expenses in preparing for what plaintiff believed would be defendant’s compliance with Supreme Court Rule 237(b). Therefore, the trial court’s exercise of discretion is not in conflict with the spirit of Galowich I. Clearly, we are loath to find that a deposition of defendant, transcribed at the last moment in anticipation of use at trial, is suddenly rendered unnecessary because of the defendant’s refusal to appear and testify in violation of Supreme Court Rule 237(b) (134 Ill. 2d R. 237(b)).

Finally, defendant argues that, in allowing plaintiff to recover the costs of defendant’s deposition, this court would adopt a “speculative use” standard since we and the trial court would be speculating on how the deposition would have been used. A “speculative use” standard is exactly what defendant is asking us to employ. We are being asked to speculate as to the trial court’s assessment of the situation and whether the deposition would not have been “used” contrary to the trial court’s determination. Inasmuch as defendant created this scenario by refusing to appear to testify after the transcript was prepared, we deem this argument as an attempt to allow a party to benefit from his own violation of the supreme court rules and is improper.

The context of our review is whether the trial court abused its discretion within the confines of Galowich I, and we find that it did not.

Therefore, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

GEIGER and INGLIS, JJ., concur.


text:
    DOROTHY GRIFFIN, Plaintiff-Appellee, v. THE VILLAGE OF WILLOWBROOK, Defendant-Appellant.
    Second District
    No. 2—90—0789
    Opinion filed April 16, 1991.

      James L. DeAno, of O’Reilly, Cunningham, Norton & Mancini, of Wheaton, for appellant.
    Gerard A. Facchini and Kenneth J. Sophie, both of Law Offices of Gerard A. Facchini, of Chicago, and Lloyd L. Speer, Jr., of Speer & Associates, and Edmund J. Siegert, of Tressler, Soderstrom, Maloney & Priess, both of Wheaton, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant appeals from the judgment of the trial court, entered on the verdict of a jury, finding against defendant in a suit for negligence. We affirm.

Plaintiff, Dorothy Griffin, was walking side by side with her sister on a street in defendant, Village of Willowbrook (Willowbrook). A car parked in the driveway of Joseph Nolan extended beyond the end of the driveway and blocked approximately one-half of the sidewalk. Griffin stepped off of the sidewalk and into the parkway in order to walk around the vehicle; as she did, she tripped over a water valve cap or “buffalo box” sticking up approximately three inches above ground level in the parkway and fell into Nolan’s driveway, injuring her wrists.

Griffin brought suit against Willowbrook and Nolan. Willowbrook filed a third-party complaint for contribution against Warren Mock, owner of the vehicle that blocked the sidewalk on the day of Griffin’s injury. Griffin settled with both Nolan and Mock prior to trial, and the court dismissed the third-party action against Mock.

Following trial, the jury returned a verdict in Griffin’s favor for $30,000, reduced by 5% to $28,500 due to negligence attributed to Griffin. Judgment was entered on the verdict. Wülowbrook filed a post-trial motion seeking, alternatively, a reduction of the judgment based on the settlements reached with Nolan and Mock, vacation of judgment with judgment entered in Wülowbrook’s favor, or a new trial. The court reduced the judgment against Wülowbrook to $21,000 by virtue of the $7,500 Griffin received in total from Nolan and Mock and denied the remainder of the motion. Wülowbrook now appeals.

In a negligence action, the plaintiff must prove a duty of care owed him by the defendant, breach of that duty, and an injury proximately caused by the breach. (Curtis v. County of Cook (1983), 98 Ill. 2d 158, 162.) The existence of a duty of care is a question of law to be determined by the court. (McLane v. Russell (1989), 131 Ill. 2d 509, 514.) Wülowbrook contends that it owed Griffin no duty of care because municipalities owe no duty of care to pedestrians walking in the parkway. We disagree.

Our supreme court in Marshall v. City of Centralia (1991), 143 Ill. 2d 1, recently considered the question of whether a municipality owed such a duty. In Marshall, the plaintiff walked on the parkway to avoid a muddy stretch of sidewalk and was injured when he stepped into an open manhole located in the parkway. After considering the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1987, ch. 85, par. 1—101 et seq.), Illinois common law prior to the Act, and the laws of many other jurisdictions, the court determined that “parkways, whüe beautifying the street, are also intended for the limited use of pedestrians.” (Marshall, 143 Ill. 2d at 9-10.) The court then concluded that the plaintiff was “an intended and permitted user of the parkway” and that “the defendant had a duty to exercise ordinary care to maintain the parkway in a reasonably safe condition for the benefit of the plaintiff.” Marshall, 143 Ill. 2d at 9.

In light of the Marshall court’s ruling, we must determine whether Griffin was an intended and permitted user of the parkway under section 3 — 102(a) of the Act, which provides in relevant part:

“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 ***.” (Ill. Rev. Stat. 1989, ch. 85, par. 3—102(a).)

We conclude that Griffin was an intended and permitted user of the parkway. While acknowledging the limited nature of pedestrian parkway usage (see Marshall, 143 Ill. 2d at 9-10), our supreme court listed a number of historical pedestrian uses of the parkway, including:

“[T]o enter a car that is parked at the curb; to retrieve mail from a mailbox; to reach a neighbor’s house across the street; to board a bus; to stand on so that others can pass you on the sidewalk; to cut the lawn; to trim the shrubs; and to rake the leaves.” (Marshall, 143 Ill. 2d at 10.)

Griffin’s usage of the parkway is consistent with the historical type of usage found intended and permitted by the Marshall court. The sidewalk that Griffin was traversing was obstructed by an automobile; in order to continue on her way, Griffin had to either walk on the parkway to pass the car or climb over the vehicle. Griffin, acting as any rational person would, chose to walk around the obstruction. It would be anomalous to penalize a pedestrian for taking a reasonable course of action. Griffin’s walk on the parkway was both intended and permitted under the historical analysis set forth in Marshall. Therefore, the trial court properly found a duty on Willowbrook’s part.

Willowbrook next contends that the court improperly refused to admit evidence of a Willowbrook ordinance that prohibits parking of vehicles in such a manner as to block the sidewalk. Village ordinance No. 84 — 0—29 states in relevant part:

“SECTION SIXTY-ONE: That Title 8, Section 8-8-1 of the Village Code of the Village of Willowbrook entitled ‘No Parking Places’ is hereby deleted in its entirety and in lieu thereof, the following language shall be substituted:
‘8 — 8—1: STOPPING, STANDING OR PARKING PROHIBITED IN SPECIFIED PLACES: Except when necessary to avoid conflict with other traffic, or in compliance with law or the directions of a police officer or official traffic control device, no person shall:
(A) Stop, stand or park a vehicle:
***
2. On a sidewalk.”

Willowbrook argues that this statute should have been allowed as evidence of its attempt to keep sidewalks unobstructed and pedestrians off the parkway, thus fortifying its contention that pedestrians were not permitted and intended users of the parkway. We are not convinced. While a party is entitled to present material and relevant evidence on its theory of the case (see Vendo Co. v. Stoner (1982), 108 Ill. App. 3d 51, 54), the evidence offered must tend to prove a disputed issue. (Haffa v. Haffa (1969), 115 Ill. App. 2d 467, 474.) In the case before us, the ordinance did not tend to prove that pedestrians are not intended or permitted users of parkways in Willowbrook, The ordinance merely tended to show that Willowbrook wanted to keep its sidewalks clear of obstructions. This ordinance in no way addressed pedestrians or their uses of parkways. Therefore, the court did not err in refusing to admit evidence of the ordinance.

Willowbrook finally contends that the court erred in not giving a proffered jury instruction. Willowbrook submitted a version of Hlinois Pattern Jury Instructions, Civil, No. 12.04 (3d ed. 1990) (IPI Civil 3d), which stated:

“More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that its negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.
However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.”

The “Notes on Use” accompanying IPI Civil 3d No. 12.04 state:

“The second paragraph should be used only where there is evidence tending to show that the sole proximate cause of the occurrence was the conduct of a third person.” (Emphasis added.) (Illinois Pattern Jury Instructions, Civil, No. 12.04, Notes on Use (3d ed. 1990).)

The evidence at trial did not show that the “sole proximate cause” of the occurrence was a third party. Evidence showed that Willowbrook was in charge of the box over which Griffin tripped. Therefore, the proffered instruction containing the second paragraph of IPI Civil 3d No. 12.04 was not proper, and the court did not err in rejecting it.

For these reasons, the circuit court of Du Page County is affirmed.

Affirmed.

BOWMAN and GEIGER, JJ., concur.