matter involves consolidated cases for test fourteen dash zero zero four three and or desk fourteen dash zero four one seven and one eight this we believe that she was an intended and permitted user and thus over a duty of reasonable care i both defendants the defendants disagree and the trial court sided with the defendants who granted their motion to dismiss we believe that decision was in error turning to the law and section two test section one hundred three of unity the specific provision it's an issue here is the intended and permitted use or exception to the toward immunity there is a significant primary purpose for street or roadway is for vehicular traffic similarly the primary purpose for a sidewalk is that as friends there are a couple of exceptions to that law including an exception that was noted by the fourth this is the record before show whether or not there's parking or move along just those sure it does route or between eighteen and twenty of street which is the border of quincy university towards the twentieth street side which would be the west side there are three parking is that while the the specific exception may not be of political here because it's peter's wasn't getting in or out of the vehicle the implication here is that when the court recognizes that narrow exception there is no marking on the surface of the street that would indicate that street can use it it's the nature of the use and that's what we're arguing here that because there were these twelve s three and sidewalks along chestnut street it went across the parkway in joined up with the street that's a clear indication of the aegis of hell is intent in under the clay case law it's clear it's the municipalities intent that controls and to determine intent you look to the physical manifestations of the only question about that though is it seems to me  and anyone crossing anywhere within this three block stretch is you can cross anywhere you walk near and doesn't permitted use or within the phrase as explained because when you look to the nature of the property we have three dormitories on the south side of chestnut street there are additional university buildings and a parking lot on the north side it's a known busy area where students cross outside of crosswalk and then they have the ability to do so because the sidewalks to do the perpendicularly with just that street he would still be a busy sidewalk where people might be walking along isn't it true it could be i mean if you've got all these normal tories and everything i mean it seems to me  people are going to do but that's not what they've been trying to do been permitted user beings as well that would be a different scenario if there were sidewalks that we have here we have a clear manifestation from the physical conditions the sidewalks the eating into the street if there weren't the sidewalks there the fact that there were no sidewalks crossing our way clear manifestation of quincy's and plan that you should cross here in here and kind of permitted user yes but they forgot to put in a cross walk well that doesn't  argument there doesn't need to be a crosswalk for the street to be in to for pedestrians in the street to be intended in permitted users there's no crosswalk for the example of the exception we just talked about where a person is going to or from their illegally parked it there is no by putting the site the sidewalks cross the park ways in they are allowing any urging yesterday and such as my client to walk across chestnut street areas other than mark and mark cross was at each side of the and this is the only case your honour's that if there is a factual scenario where there is any visible manifestation on the property of a pedestrian crossing mid block that would lead to the logical conclusion that they were encouraged and allowed to cross the street may have blocked none of the other cases when the supreme court authority on this point has a factually similar circumstance and for that reason we have the physical manifestation we have the condition present these the sidewalks that beat into the street the sheer number of them in such a limited area is also indicative that there is an analogy that people would be crossing in large amounts there and going across to the other university buildings and your further determination about the intended permitted user status but the perspective of the argument that we want to make today focuses on a little different aspect of our position it is asking this whether or not the city and hammering are subject to liability and tor for the purposes of contribution and i think to be frank we have to start out and acknowledge to the court that we are aware of the wording of the three one zero two ag and its use of the word duty and we're aware in a standard negligence case how the concept of duty is viewed as part of a prima facia case but the distinction that we're asking this court to look at today in our case is given the limiting nature of the toward immunity section immunity act as a whole you see that the entire concept of the act is one that's couched in immunity and so the question is then for us why is that important in this case why can't we simply look at this as maybe the court didn't and bon or huff and say well this is a part of the court case it needs to be pled by the plaintiffs and it wasn't done and so therefore it's a part of the duty of the difference here really is the nature of this case arising  the argument that we're making here is recognizing in a standard negligence case but we're not talking about a duty that outlined or set forth in any particular statute that the duty question is a part of the would be different but in this case the vehicle that's been given to party to raise this three death one too is an affirmative defense and that must be race and that's important for this reason we spent a lot of time in our brief talking about the common law and how the toward immunity at the common law and that's important in this case for this reason if i could run through this real quick in the common law municipality over over to duty or reasonable care and that duty was not limited or fed in any way by intended user or permitted user distinction that was brought into play by the toward immunity act that's our position since it toward immunity act is viewed as an affront to defense that a defendant in this situation must raise that in order to be able to say that to to raise effects that we have to have an intended permitted use or because what the toward immunity act does with three dash one or two is attempts to codified the common law as it star their question i think the difference here is the vehicle of different defense and i really do think it comes down to this we're going to be differences one the fact that we have three one zero two which raises the limitation of the duty and from a defense and this is why we think this is important when you look at the cases that council has cited which is the broke ace the fireman's rule case and you look at the door case that we cited we've got two distinct lines of thought here and in the row case you've got a statute w compensation work that common law an employer is liable in negligence and the work comp then creates an opportunity for the employer to come in after the fact and say no we're not libel because we have the affirmative defenses now the difference there is in the door case the law duty of negligence and you've got to lay out all your elements is that in this case with the toward immunity act three dash one or two embodies this language within the statute and it says here is your duty and it's limited by these factors which are the intended permitted users and so we our position is because of the way this is structured we've got a different situation here than we do in any standard minimal case and because you have to raise that limitation to the duty by a firm defense then that that puts us into this additional duties i think what it does is it limits the duties that were previously recognized by the common law in that limit so that by by restricting the obligation to intended in permitted users and we pointed to the body of case law prior toward immunity act and there's no recognition of an internet primitive user distinction well why would there be language of intended and permitted users in pre nine hundred sixty five law when that wasn't relevant but that wasn't the law and that's a point well your are you saying that there was no case law indicating that there was no duty of an individual was not meant to be in that location right and if you look at the kief case that we cited from eight hundred eighty five i think it was in the keith case a tried to do that by way of an instruction they had a child who was using hoop of some sort on the sidewalk in there was an ordinance that prohibited that type of activity and the question was whether or not you could instruct the jury of this child is using this sidewalk an unintended and primitive manner the supreme court said no you can't  well i do not believe that codified and one hundred percent and i don't really do not well they're responding to how the supreme court misspoke when they wrote that i don't know if this issue has been squarely presented to the court in that context so we carry it seems to be squarely just not there thank you thank you j that here today riggs as a position is based on several faulty premises one of them being that the common law did not limit cities to the duties to intended  permitted users and in fact when you look at the body of case law that has been cited by this regs those were all clearly intended and permitted users so again why would the court have addressed that issue they're us is why is there is that how the contribution or it's written some of the cities the city which is otherwise immune directly is still liable to the joint tortfeasor of the constitution will jump ahead my argument then because i intended to address that issue because even assuming for the sake of argument that that section three one zero two is an affirmative defense there's a whole body of case law that says you toward immunity still w the contribution act it doesn't really matter what we call it the public policy behind the tort immunity act is to protect the taxpayers from having to duty at large this requires some kind of construction of the contribution to reach the other immunity provisions following that all speak about whether the municipality is libel or in u i'm so in this context it hasn't been addressed how about in the other if there were some talking about that being the physical manifestation indicating cities and so here let's just assume on a law you have a sports facility on one side of the street and on the opposite side of the street you have a parking lot and you have squarely in the middle of the block the center of the block sidewalks for leaving the parking lot to the curb line and then on the exact opposite side of history parallel that on line of a number sidewalk leading from the opposite her to the sports facility now we're talking about sidewalks here we're not talking about street cutouts we're not talking about park cars or anything if that isn't a marked cross walk of with that be a physical manifestation the fact that there are sidewalks going along with each other from what would appear to be an obvious parking lot the serving  sports facilities when there be a physical manifestation indicating there is a cross walk between those two sides i don't believe so and the reason i don't think so is we've got a whole body of case law that says when you have a mid block crossing you need markings and sidewalks are not markings and you look to that state illinois vehicle code and you look to the federal regulations on what types of markings mean what and those tell us that those tell us what are markings and what constitutes a cross maybe thousands of them what do you remember landings that's yeah that's my unofficial description of them have sidewalks that the concrete areas between the parkway and the sidewalk i would refer sidewalks where in the were she would be done arguably it's like an implicit cross walk where she attended coming from the sidewalk that  she has a general idea and her deposition she did have a placement we believe the city has interviewed that the police office has responded to the scene and taken measurements so there may dismissal was based on the conclusion that emran did not know what duty to the plaintiff in this case when we begin the arguments in the circuit court what we were looking at was the park ridge case from the supreme court of illinois which had a very similar circumstance where you had an individual crossing the street mid walk who was struck and i knew that it was no duty on behalf of the city and also on behalf of the utility company in that case and there was a comment made by the supreme court that the utilities company could its duty could be no greater than that of the city and there wasn't a lot of analysis in that case or in the appellate court decision and done it which follow from the first district but i think logically if the city which designs the streets and chooses how it's going to be used and where pedestrians are going to be crossing where they're not supposed to be crossing and decides what lighting they want from the contractor amarin in this case doesn't have a duty why but then the plaintiff said to judge work all well i'd like to try to plead a common law against cameron so let's i think they have some common law duty here of the issue with them was will go through the standard four steps of a common law duty analysis under either the bronze case with the recent supreme court decision or this court's per kept decision against amber which i argued which both dealt with the issue of an inch utility companies in the case of bearcat common law and his forsee ability unlike that of injury and all of that and what the court has said is that when the condition is obvious and dick supreme court defines it as what a reasonable person exercise an ordinary perception would appreciate the risk off then it's not perceivable because you expect somebody is going to exercise ordinary care to avoid that risk and the likelihood of injury is also not high because again you expect that the individual going to avoid that risk but counsel if i put it are you saying that it's still necessary to proceed with a traditional duty analysis when the client duty is one to provide a lumination i'm saying that in this commenting on this as a belt suspenders sort of argument well i think it's certainly the latter because the cases and part which undone it i think answered the question from amerinds point of view however given that the plaintiff has suggested that you could set those aside and try to plead a traditional duty analysis then under the the cases from bronze and bearcat there's certainly not a traditional duty even if you went beyond what the  either analysis in this case there was no duty on the part of amarin to a pedestrian crossing the street meant block as it was in this case and the last point i will make because it's addressed by the plaintiff  fact that the contractual risk if you will that him or her talk for not meeting that obligation was we have to abate the electricity charge for that particular streetlight so i don't think they can cherry pick this is the half of the bargain we like to say it's a minimal wrong just like to address some complaints that came up during the first point is that the city seems to argue that the only way is peters can be intended user of the street is if there's a cross walk no case hold the cases that talk about a person getting in  out of a car there's no painted line on the street the alley cases of allah's and who stayed out of evanston there's no marking on the sidewalk so i don't believe that's a proper premise for evaluating this particular case because we have a physical manifestation in the fact that this is a the fact that there are twelve of these is not a mid block crosswalk this is an area where the sea made the decision to install these sidewalks across the parkway to allow people to go into the street if they didn't want people to go into the street as came up earlier they could have put a fence up at the they could have really put some markings on the pavement saying don't enter street they didn't do any of it this is an open invitation for pedestrians to go into the street in twelve because there are motorists in some of the cases all that the property should meet be maintained for intended users which clearly motorists are of the street they were under an obligation to maintain the street in the street lights anyway so imposing a duty to do it