2014 IL App (1st) 132856 

No. 1-13-2856 

Opinion Upon Denial of Rehearing filed September 4, 2014 

 FOURTH DIVISION 

 

______________________________________________________________________________ 

IN THE 

APPELLATE COURT OF ILLINOIS 

FIRST JUDICIAL DISTRICT 

______________________________________________________________________________ 

LORRAINE PATTULLO-BANKS and ) Appeal from the 

GEORGE BANKS, ) Circuit Court of 

 ) Cook County. 

 Plaintiffs-Appellants, ) 

 ) 

 v. ) 12 L 1459 

 ) 

THE CITY OF PARK RIDGE, a Municipal ) 

Corporation, ) Honorable 

 ) Lynn M. Egan, 

 Defendant-Appellee. ) Judge Presiding. 

______________________________________________________________________________ 

JUSTICE HOWSE delivered the judgment of the court, with opinion. 

Presiding Justice Fitzgerald Smith and Justice Epstein concurred in the judgment and 

opinion. 

OPINION

¶ 1 Plaintiffs Lorraine Pattullo-Banks and George Banks appeal from an order of the circuit 

court of Cook County entering summary judgment in favor of defendant, the city of Park Ridge, 

in the lawsuit they filed to recover damages for personal injuries suffered by Lorraine PattulloBanks. In the complaint, plaintiffs alleged that the city of Park Ridge breached its duty to 

maintain its property in a reasonably safe condition for intended and permitted users of the 

sidewalk, which caused Pattullo-Banks’ injuries. Plaintiffs' complaint alleged that PattulloBanks was walking near a train station on a city of Park Ridge sidewalk located along Touhy 

Avenue when she encountered an unnatural accumulation of snow and ice which obstructed her 

pathway. Plaintiffs alleged that the city of Park Ridge created the obstruction during snow 
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removal operations when it plowed snow from the public streets onto the sidewalk, making the 

sidewalk impassable. Because the sidewalk was obstructed, the complaint alleges, in order to 

reach her destination Pattullo-Banks was forced to cross Touhy Avenue at the point of the 

obstruction, where there was no marked crosswalk. Pattullo-Banks was injured when she was 

struck by a car while attempting to cross the street. Plaintiffs sought damages for Lorraine's 

personal injury and George Banks sought damages for loss of consortium. 

¶ 2 The city of Park Ridge (the City) filed a motion for summary judgment. The City argued 

that section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity 

Act (Tort Immunity Act) (745 ILCS 10/3-101 et seq. (West 2008)) provides that a local public 

entity has a duty to exercise ordinary care to maintain its property in a reasonably safe condition 

only for the ordinary use of intended or permitted users. See 745 ILCS 10/3-102(a) (West 2008). 

The City argued it is immune from the damages claims because Pattullo-Banks was not an 

intended or permitted user of the street where her injury occurred. In response, plaintiffs argued 

that the city of Park Ridge did owe Pattullo-Banks a duty because she was an intended and 

permitted user of the sidewalk. 

¶ 3 The trial court agreed with the city of Park Ridge and dismissed the complaint, finding 

that the City was immune from liability for Pattullo-Banks' injuries because Pattullo-Banks was 

not an intended user of Touhy Avenue where she was injured. 

¶ 4 In most of the cases cited by the parties construing section 3-102(a), the breach of the 

duty to exercise ordinary care to maintain property in a reasonably safe condition and the alleged 

resulting injury occurred on the same property. However, in this case the breach of duty 

occurred on the sidewalk but the injury occurred in the street. This appeal presents us with the 

following issue: Where a public entity allegedly breached its duty to maintain its property in a 
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reasonably safe condition and the public entity asserts it is immune under section 3-102(a), is the 

plaintiff’s status as an intended or permitted user determined by the place where the alleged 

breach of duty to maintain property occurs or where plaintiff’s injury occurs? Based on our 

reading of the statute we find that where a plaintiff alleges that a municipality breached its duty 

to use ordinary care to maintain its property and the defendant invokes section 3-102(a) of the 

Tort Immunity Act as a defense, the issue of whether the plaintiff was an intended and permitted 

user is to be determined based upon the property for which the city is alleged to have breached 

its duty rather than the place where the injury occurred. As such, we find the trial court applied 

the wrong standard here when it dismissed plaintiffs' claim based on its finding that PattulloBanks was not an intended or permitted user of the street, which was merely the place where her 

injury occurred. Accordingly, we reverse the trial court's grant of summary judgment in favor of 

the city of Park Ridge, and remand this matter to the trial court for further proceedings. 

¶ 5 BACKGROUND 

¶ 6 This is the second time this case has been appealed. Plaintiffs filed the first appeal from 

the trial court's dismissal of the city of Park Ridge, as well as other defendants in the case, 

pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) 

(West 2008)). Banks v. City of Park Ridge, Nos. 1-10-0498 and 1-0901 (2011) (unpublished 

order under Supreme Court Rule 23). We found that the trial court improperly dismissed those 

claims. Specifically, we found that for purposes of a section 2-619(a)(9) motion, it was 

insufficient for the city of Park Ridge to attach an affidavit stating that there was no crosswalk 

where Pattullo-Banks was struck by a car because that merely rebutted plaintiffs' well-pled 

allegation that there was an unmarked crosswalk where she was struck by a car. Thus, because 

the city of Park Ridge failed to offer an affirmative matter to negate the claim in plaintiffs' 
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complaint, we reversed the trial court's dismissal pursuant section 2-619(a)(9) and remanded the 

matter for further proceedings. In so ruling, we noted that we were not addressing the merit of 

plaintiffs' allegations that the city of Park Ridge owed Pattullo-Banks a duty. 

¶ 7 Following remand, plaintiffs amended their complaint. Count III of plaintiffs' second 

amended complaint, titled "Breach of Duty, Negligence" against the city of Park Ridge alleges 

that the city of Park Ridge owed Pattullo-Banks numerous duties that it breached, which 

included: a duty not to create or aggravate an unnatural accumulation of snow and ice on the 

public walkways; a duty to provide known and permitted users of the train station with safe and 

reasonable means of egress from the train station; a 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 who 

Park Ridge intended and permitted to use the property; and a duty to warn commuters and other 

pedestrians that if they exited the train station onto the south side of Touhy Avenue, there would 

be no safe way to get to the north side. 

¶ 8 On April 2, 2013, the city of Park Ridge filed a motion for summary judgment. In the 

motion, the City argued that it owed no duty to Pattullo-Banks pursuant to section 3-102(a) of 

the Tort Immunity Act because she was not an intended user of Touhy Avenue where she was 

struck by a car. In support of its motion, the City offered the testimony of a Park Ridge police 

sergeant and accident reconstructionist Kirk Ashelman, the testimony of City Engineer Sarah 

Mitchell, and numerous photographs of the property in question. Both witnesses offered 

testimony that there was no marked or unmarked crosswalk where 3rd Street intersects Touhy 

Avenue, the site where plaintiff was struck by a car. 

¶ 9 In response, plaintiffs argued that the city of Park Ridge owed Pattullo-Banks a duty 

because the City was negligent in creating an unnatural accumulation of snow and ice on the 
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sidewalk. Plaintiffs argued that the issue of whether Pattullo-Banks was in a crosswalk was 

irrelevant. Alternatively, plaintiffs argued that Pattullo-Banks was in an unmarked crosswalk at 

the time she was struck by a car. In support of this argument, plaintiffs offered the definition of 

a "crosswalk" as defined by section 1-113 of the Illinois Vehicle Code (Vehicle Code) (625 

ILCS 5/1-113 (West 2008)), as well as photographs of the property at issue. 

¶ 10 On August 5, 2013, the trial court granted summary judgment in favor of the city of Park 

Ridge because it found that the City did not owe Pattullo-Banks a duty. Specifically, the trial 

court found that the testimony of the City's witnesses, along with the photographs of the property 

at issue, showed that there was no marked or unmarked crosswalk where Pattullo-Banks was 

injured. Finding that a city does not owe a duty to a pedestrian crossing the street outside of any 

crosswalk pursuant to section 3-102(a) of the Tort Immunity Act, the trial court granted 

summary judgment in favor of the city of Park Ridge. 

¶ 11 Plaintiffs appealed the trial court's ruling granting summary judgment in favor of the city 

of Park Ridge. We reversed and remanded the trial court's ruling in a June 26, 2014, Illinois 

Supreme Court Rule 23 order (Ill. S. Ct. R. 23(b) (eff. July 1, 2011)). Banks v. City of Park 

Ridge, 2014 IL App (1st) 132856-U. The city of Park Ridge subsequently filed a petition for 

rehearing. We withdrew our Rule 23 order on August 14, 2014. For the reasons that follow, the 

city of Park Ridge's petition for rehearing is denied and the trial court's ruling is reversed. 

¶ 12 ANALYSIS 

¶ 13 Summary judgment is proper where “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.” 735 ILCS 5/2-1005(c) (West 

2008). Summary judgment in favor of a defendant is proper where the plaintiff fails to establish 
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an element of a cause of action. Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989). In order to 

maintain a cause of action for negligence, plaintiffs must establish that the city of Park Ridge 

owed a duty of ordinary care, breached that duty, and an injury was proximately caused by that 

breach. See Curatola v. Village of Niles, 154 Ill. 2d 201, 207 (1993). The existence of a duty 

and the existence of immunity are separate issues. Barnett v. Zion Park District, 171 Ill. 2d 378, 

388 (1996). We review summary judgment rulings de novo. Espinoza v. Elgin, Joliet & Eastern 

Ry. Co., 165 Ill. 2d 107, 113 (1995). Section 3-102(a) of the Tort Immunity Act, titled "Care in 

maintenance of property; constructive notice," states: 

"(a) Except as otherwise provided in this Article, a local public 

entity has the duty to exercise ordinary care to maintain its 

property in a reasonably safe condition for the use in the exercise 

of ordinary care of people whom the entity intended and permitted 

to use the property in a manner in which and at such times as it 

was reasonably foreseeable that it would be used, and shall not be 

liable for injury unless it is proven that it has actual or constructive 

notice of the existence of such a condition that is not reasonably 

safe in reasonably adequate time prior to an injury to have taken 

measures to remedy or protect against such condition." 745 ILCS 

10/3-102(a) (West 2008). 

¶ 14 In its motion for summary judgment, the city of Park Ridge argues that for purposes of 

section 3-102(a) immunity, Pattullo-Banks was neither an intended or permitted user of the street 

because she was crossing the street outside a crosswalk when she was struck by a car. As a 
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result, the City argues, it did not owe her a duty of care under the Tort Immunity Act, and the 

City is immune from any liability arising from her injuries. We disagree. 

¶ 15 It is well established that the Tort Immunity Act does not create duties; "[r]ather, the Act 

merely codifies those duties existing at common law, to which the subsequently delineated 

immunities apply." (Internal quotation marks omitted.) Village of Bloomingdale v. CDG 

Enterprises, Inc., 196 Ill. 2d 484, 490 (2001). Section 3-102(a) of the Tort Immunity Act 

codified the duty of the city of Park Ridge to exercise ordinary care in the maintenance of its 

property for intended and permitted users of its property. 745 ILCS 10/3-102(a) (West 2008). 

The immunity provided in section 3-102(a) applies where a public entity breaches its duty to 

exercise ordinary care to maintain its property in a reasonably safe condition but (1) the entity 

did not have actual or constructive notice of the unsafe condition in reasonably adequate time 

prior to an injury to have taken measures to remedy or protect against the condition, or (2) the 

injured party failed to use ordinary care or was not an intended and permitted user of the 

property. 745 ILCS 10/3-102(a) (West 2008). In other words the issue of whether or not an 

injured party is an intended and permitted user of property does not arise unless there is a claim 

of a breach of duty to exercise reasonable care to maintain property for the benefit of intended 

and permitted users. 

¶ 16 In this case, plaintiffs clearly allege that the city of Park Ridge breached its duty of care 

by failing to exercise reasonable care to maintain the sidewalk. Plaintiffs make no claim that the 

city of Park Ridge breached its duty to exercise reasonable care to maintain the street or that 

plaintiff was injured because of the improper maintenance of the street. Pattullo-Banks’ status as 

a intended or permitted user of the street is irrelevant to a determination of whether the City has 
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immunity under section 3-102(a) because there is no claim the City breached its duty to maintain 

the street to which immunity could even apply. See 745 ILCS 10/3-102(a) (West 2008). 

¶ 17 Under the plain language of the Tort Immunity Act, where a public entity has allegedly 

breached the duty to maintain property for intended and permitted users of the property, we must 

look to the property where the breach allegedly occurred to answer the question of whether the 

injured party was an intended or permitted user of the property. Thus, Pattullo-Banks' status as 

an intended or permitted user--and whether immunity applies--must be determined based on the 

property where alleged breach of duty occurred (the sidewalk), not the property where the injury 

occurred (the street), and not the mechanism of her injury (i.e., whether she was struck by an 

automobile or tripped on a defect). The trial court granted summary judgment in favor of the 

city of Park Ridge based on its finding that Pattullo-Banks was not an intended and permitted 

user of the street. The trial court granted summary judgment on an improper basis and its 

judgment must be reversed. 

¶ 18 The existence of a duty, whether there was a breach of that duty, and whether that breach 

was the proximate cause of the plaintiff's injuries are each separate questions. The focus on 

whether the City owed a duty to Pattullo-Banks while she was crossing the street was misplaced. 

Plaintiffs note that their allegations arise from the claim that the city of Park Ridge negligently 

failed to clear the sidewalk of an unnatural accumulation of snow and ice. Although the City 

argued in its motion for summary judgment that it had no duty to clear the sidewalk at issue, it is 

well established that a city has a duty to keep its sidewalk in a reasonably safe condition for 

pedestrians. Kiel v. City of Girard, 274 Ill. App. 3d 821, 825 (1995) ("a public entity may be 

liable for unnatural accumulations of ice and snow, provided that the public entity has violated 
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its duty to exercise ordinary care, even absent a showing that the underlying sidewalk or street 

was defective"). 

¶ 19 In Kiel, the plaintiff and her husband drove up to and pulled over alongside a sidewalk 

that was bordered by a curb. Kiel, 274 Ill. App. 3d at 823. When the plaintiff exited the car, she 

stepped over a mound of snow on the curb in order to reach the plowed sidewalk. Id. The 

mound of snow on the curb was created as a result of plowing the sidewalk and a parking lot. Id. 

After paying her bills and on her way back to the car, the plaintiff again attempted to step over 

the curb where the mound of snow was located, and she fell and injured herself. Id. The jury 

entered a verdict in the plaintiff's favor, but the appellate court reversed that verdict finding that 

it was against the manifest weight of the evidence. Id. at 828. Specifically, the court stated: 

"Although the evidence was sufficient to establish that the City 

created an unnatural accumulation of snow and that plaintiff's 

injuries would not have occurred without this unnatural 

accumulation, the evidence does not establish that the City 

breached its duty of ordinary care. 

 The City created a small, but easily visible, mound of snow 

on the curb as a side effect of its street- and-sidewalk-clearing 

efforts. There was nothing unusual about the size or placement of 

this mound. Snow cleared from pathways must be placed 

somewhere. Elsewhere, the City took the extraordinary measure of 

collecting snow from curbside and depositing it in the park. 

However, the mere fact that the City failed to use extraordinary 
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measures everywhere does not mean it failed to use ordinary care 

here." Id. at 827. 

¶ 20 Thus, while the court in Kiel held that the verdict was against the manifest weight of the 

evidence, it was because there was nothing unusual about “the size or placement of this mound.” 

Id. The court in Kiel held that “[r]equiring prompt cleanup of all snow plowed curbside would 

place an enormous burden on cities, and such a duty would have the consequence of 

discouraging snow removal.” Id. at 828. The court held that “Illinois law imposes no such 

duty.” Id.

¶ 21 To the extent the Kiel court found the city did not have a duty to immediately remove 

plowed snow the holding is limited to the facts of that case and is inapplicable here and does not 

affect its holding that a duty to maintain the sidewalk exists. Id. at 827-28. Kiel involved a small 

amount of snow plowed “off the sidewalk and onto the curb.” Id. at 823. The court in Kiel still 

clearly recognized the duty of a city to clear unnatural accumulations of ice and snow from its 

sidewalks. Id. at 825 (“where a landowner negligently performs ice and snow removal, adding to 

or creating a new hazard, he may be liable for a resulting injury”). In this case, we are not 

dealing with a small amount of snow cleared from a sidewalk and onto a curb, but rather snow 

that the City plowed onto the sidewalks and then failed to clear, allegedly making them 

impassable in the exercise of ordinary care. “It is well settled that a city owes a duty to keep its 

streets and sidewalks safe for the purpose for which they are intended and for the use of those 

who are themselves exercising ordinary care.” Thorsen v. City of Chicago, 74 Ill. App. 3d 98, 

107 (1979). Whether the City breached that duty is a factual matter for the trier of fact to decide. 

Hornacek v. 5th Avenue Property Management, 2011 IL App (1st) 103502, ¶ 27. 
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¶ 22 In its motion for summary judgment and petition for rehearing, the city of Park Ridge 

argues three decisions by our supreme court control the outcome of this case. They are Wojdyla 

v. City of Park Ridge, 148 Ill. 2d 417 (1992), Vaughn v. City of West Frankfort, 166 Ill. 2d 155 

(1995), and Boub v. Township of Wayne, 183 Ill. 2d 520 (1998). In each of those cases our 

supreme court found that a city had no duty to a pedestrian injured in a street or roadway. 

However, we find those cases are easily distinguished. In Wojdyla, 148 Ill. 2d at 419, the 

plaintiff alleged that the city was negligent in the placement and maintenance of streetlights on 

the highway. The plaintiff argued that the city's failure to maintain the street lights was the cause 

of the decedent's death when a driver of a vehicle was unable to see the decedent and hit him as a 

result. Id. Ultimately, the court found that the city was immune under section 3-102(a) of the 

Tort Immunity Act because it determined that the decedent was not an intended user of the street 

where he was hit. Id. at 424. The present case can be distinguished from Wojdyla because there, 

the alleged breach of duty was failure to “maintain” the street (the failure to illuminate the street) 

and the injury occurred at the site of the breach on the street (being struck due to the inadequate 

illumination). Here, the alleged breach of duty was failure to maintain the sidewalk but the 

injury occurred at a different site. 

¶ 23 In Vaughn, 166 Ill. 2d 155, the plaintiff sought recovery for injuries caused as a result of 

stepping into a hole in the street while crossing. Vaughn, 166 Ill. 2d at 157. Ultimately, the 

court found that the city was immune under section 3-102(a) of the Tort Immunity Act because 

the plaintiff was not an intended user of the street where he was injured. Id. at 158-65. In 

Vaughn, the plaintiff was injured at the location of the alleged breach of duty to maintain 

property. But in this case, the city of Park Ridge is alleged to have breached its duty to maintain 

the sidewalk, which resulted in an injury in the street. That difference distinguishes this case 
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from the Vaughn case. Similarly, in Boub, 183 Ill. 2d at 522, the plaintiff was thrown from his 

bicycle when his front tire became stuck between two planks on a bridge. Boub, 183 Ill. 2d at 

522. The court found that the city was immune under section 3-102(a) of the Tort Immunity Act 

because the plaintiff was not an intended user of the bridge, where he was injured. Id. at 535-36. 

¶ 24 In the cases on which the city of Park Ridge relies, the plaintiffs made allegations that 

their injuries were caused by the defendants' failure to exercise ordinary care to maintain a street 

or bridge. In those cases, when the defendants raised section 3-102(a) immunity as a defense, 

the court was required to determine whether the plaintiffs were intended and permitted users of 

the street or bridge because the street or bridge was the property that the plaintiffs alleged had 

been negligently maintained by the defendants. In those cases, the property the plaintiffs alleged 

was negligently maintained and the property where the injury occurred were the same. Unlike 

those cases, here plaintiffs allege that the City negligently maintained the sidewalk. 

Accordingly, plaintiff's status as a permitted and intended user should be determined for the 

sidewalk. Her status as a permitted and intended user of the street is irrelevant to the immunity 

question, as her injuries are not alleged to have arisen out of a condition of the street. 

¶ 25 Aside from the plain language of section 3-102(a) of the Tort Immunity Act, we find 

further support for our interpretation of section 3-102(a) in Nelson v. Northeast Illinois Regional 

Commuter R.R. Corp., 364 Ill. App. 3d 181 (2006). In Nelson, a 15-year-old minor was injured 

while she was trespassing on the defendant's rail road track and was struck by a train. Nelson, 

364 Ill. App. 3d at 183. The rail road was owned by defendant METRA, a municipal 

corporation. Id. The minor plaintiff filed a complaint against METRA under the frequent 

trespass doctrine alleging that METRA was aware that children frequently trespassed on the 

property and did nothing to prevent potential harm to those children. Id. at 186. In response, the 
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defendant claimed that it was immune from the plaintiff's allegations under section 3-102(a) of 

the Tort Immunity Act because the plaintiff was not an intended or permitted user of the railroad 

tracks where she was injured. Id. at 188. The Nelson court held that "section 3-102(a) immunity 

applies where the following two requirements are met: (1) the injured party was not an intended 

and permitted user of the property; and (2) the injury arose from the condition of the property. 

Section 3-102(a) immunity does not apply where the injuries arose from an unsafe activity 

conducted on otherwise safe property." Nelson, 364 Ill. App. 3d at 190. The Nelson court went 

on to state that "section 3-102(a) expressly refers only to the 'condition' of the property, not to the 

activities thereon." Id. 

¶ 26 Here, plaintiffs do not allege that Pattullo-Banks was injured as a result of a condition of 

the street where she was injured. As such, it cannot be said that plaintiff's injury arose from a 

breach of the City's duties to maintain the street. Instead, her "injuries arose from an unsafe 

activity [crossing at an unmarked crosswalk] conducted on otherwise safe property [the street]" 

(id.), and the Tort Immunity Act does not grant the City immunity under such a scenario. Id. As 

such, the trial court's summary judgment order for the city of Park Ridge must be reversed. 

¶ 27 If plaintiffs establish the City was negligent in creating an unnatural accumulation of ice 

and snow on the sidewalk, the proper question at that point becomes whether the alleged breach 

of duty to maintain the sidewalk was a proximate cause of Pattullo-Banks’ injury in the street. 

The city of Park Ridge also raised in its petition for rehearing that the plaintiff violated state law 

by failing to cross the street at a designated crosswalk. However, not only was this issue not 

raised in the City's motion for summary judgment and not properly before us on appeal, but 

Pattullo-Banks' crossing Touhy where she did and any alleged violation of traffic laws are 

questions of proximate cause. Johnson v City of Rockford, 35 Ill. App. 2d 107, 120 (1962) 
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(“Whether or not the piling of the snow and ice on the sidewalk and permitting it to remain there 

was the proximate cause or one of the proximate causes of the injury in question, we believe to 

be a question of fact to be determined by a jury ***.”); Parkin v. Rigdon, 1 Ill. App. 2d 586, 593 

(1954) ("such conduct on the part of the pedestrian will not of itself preclude recovery on the 

ground of contributory negligence if the violation of the statute is not the proximate cause of the 

injury"). 

¶ 28 In similar circumstances, the court has found that when it is established that a city has 

breached its duty to maintain its sidewalks or otherwise provide a safe place to walk, or else give 

notice that the street is closed to pedestrian traffic (Thorsen, 74 Ill. App. 3d at 107), the next 

issue is whether the city’s breach constitutes a proximate cause of the plaintiff’s injuries. 

Thorsen, 74 Ill. App. 3d at 107-09. In Thorsen, the plaintiff was struck by an automobile while 

walking in the street. Id. at 101. The plaintiff testified that the city “failed to maintain a 

sidewalk *** making it necessary for pedestrians to use the street.” Id. The area where the 

plaintiff in Thorsen was struck had no sidewalks and the area where the sidewalk had been was a 

dirt area, which at the time was very muddy with large puddles and may have been blocked by 

construction trailers and equipment. Id. at 103-04. The Thorsen court first found that the city 

had a duty to “maintain a sidewalk or provide a safe means of pedestrian travel.” Id. at 106. The 

court cited Johnson for the proposition that “because it was reasonably foreseeable that the 

plaintiff would be struck by an automobile after being forced into the street, the question [of 

whether the breach of duty constituted a proximate cause of the injury] was one of fact for the 

jury.” Id. at 109 (citing Johnson, 35 Ill. App. 2d at 114-20). 

¶ 29 While the trial judge suggested in her ruling on summary judgment that Wojdyla

somehow overruled Thorsen and Johnson, this is not the case. Wojdyla dealt with injuries 
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arising from a condition of the street where the injury occurred: inadequate lighting. Thorsen

and Johnson dealt with injuries that arose from an unsafe activity conducted on otherwise safe 

property; which, as noted earlier, is an important distinction. Moreover, Thorsen and Johnson, 

like this case, dealt with an allegedly negligent failure to maintain property in one location that 

may be a proximate cause of an injury in another location. In our view, Thorsen and Johnson

remain unaffected by Wojdyla and are good law. 

¶ 30 Ordinarily, questions concerning proximate cause are factual matters for the jury to 

decide. Ward v. K mart Corp., 136 Ill. 2d 132, 156 (1990). However, the issue of proximate 

cause can become a question of law when the facts are not only undisputed but are such that 

there can be no difference in the judgment of reasonable persons as to the inferences to be drawn 

from them. Durbin v. St. Louis Slag Products Co., 206 Ill. App. 3d 340, 357 (1990). In 

Arbogast v. Fedorchak, 44 Ill. App. 2d 160 (1963), the court determined the issue of proximate 

cause as a matter of law where the plaintiff was struck by a car after she abruptly exited a bus 

after realizing she had forgotten her bus pass. The plaintiff alleged that the bus driver stopped 

over the crosswalk, forcing the plaintiff to cross the street outside of the crosswalk, where she 

was then hit by a car. Arbogast, 44 Ill. App. 2d at 167. The appellate court found that judgment 

notwithstanding the verdict in favor of the defendant was appropriate, stating: "We do not 

believe that reasonable minds should say that the bus driver could reasonably foresee plaintiff's 

injury, as it occurred, following from his blocking of the rear crosswalk. In our judgment the 

bus, standing where it was, merely created a condition which was at most a remote cause of 

plaintiff's injury." Id. at 169. 

¶ 31 On the other hand, in Scerba v. City of Chicago, 284 Ill. App. 3d 435, 439 (1996), the 

court reversed the trial court's ruling on summary judgment in favor of the city where a Chicago 
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Transit Authority (CTA) bus was blocking the crosswalk, forcing the plaintiff's child to cross the 

street outside of a marked crosswalk, where the child was then hit by a car. In reversing the trial 

court, this court noted “a reasonable jury could find an unbroken causal connection between the 

blocked intersection and the injury.” Scerba, 284 Ill. App. 3d at 441. Although the court 

recognized that the child foolishly rejected several safe routes for the risky path the child 

ultimately took, the court noted that the “availability of another route, standing alone, is not 

enough to erase the foreseeability of [the child] pursuing the path he traveled.” Scerba, 284 Ill. 

App. 3d at 441. See also Thompson v. County of Cook, 154 Ill. 2d 374 (1993) (finding that a 

driver's actions in driving drunk, speeding, and eluding the police were the sole proximate cause 

of the plaintiff's injuries thereby breaking any causal connection between the city's alleged 

negligence in failing to adequately warn motorists of a curve in the road and the plaintiff's 

injuries). 

¶ 32 In this case, whether the alleged breach of the city of Park Ridge's duty to use ordinary 

care to maintain its sidewalks in a reasonably safe condition was a proximate cause of PattulloBanks being struck by an automobile while crossing Touhy cannot be decided as a matter of law. 

We find that reasonable minds could say the City could reasonably foresee Pattullo-Banks' 

injury, as it occurred, following from its blocking of the sidewalk. Assuming, arguendo, that her 

chosen path was "risky" that is not enough to erase the foreseeability of her choosing that path. 

As in Scerba, “a reasonable jury could find an unbroken causal connection between the blocked 

[sidewalk] and the injury.” Scerba, 284 Ill. App. 3d at 441. Nor can we say that any alleged 

violation of the traffic law was the sole proximate cause of the injury. Rigdon, 1 Ill. App. 2d at 

593. "The question of whether the negligence of plaintiff was the sole proximate cause or a 

contributing cause of the injury is an issue for the jury to decide under principles of comparative 
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negligence." Buchaklian v. Lake County Family Young Men's Christian Ass'n, 314 Ill. App. 3d 

195, 205 (2000). 

¶ 33 We reiterate that we are making no determination as to the presence of any marked or 

unmarked crosswalks, that there was a breach of duty, or that a breach of duty was a proximate 

cause of Pattullo-Banks’ injury. We are holding that the trial court misapplied section 3-102(a) 

because the alleged breach of duty did not occur in the street, therefore, whether Pattullo-Banks 

was a permitted an intended user of the street is irrelevant. Because the plaintiff here alleged the 

City breached its duty to exercise ordinary care to maintain the sidewalk, under the clear 

language of the statute her status as an intended or permitted user of the sidewalk is the relevant 

consideration. Conversely, because there is no allegation that the city of Park Ridge breached its 

duty to exercise ordinary care to maintain the street, Pattullo-Banks’ status as an intended or 

permitted user the street is irrelevant to determine whether immunity applies under section 3-

102(a). The trial court erred when it dismissed the case on that basis. Accordingly, its judgment 

must be reversed. 

¶ 34 CONCLUSION 

¶ 35 For the reasons stated above, we reverse the trial court's grant of summary judgment in 

favor of the city of Park Ridge and remand this matter for further proceedings. 

¶ 36 Reversed and remanded.