SECOND DIVISION

									November 26,2002	

No. 1-00-3689		

ZOFIA BIEL, Independent Adm'r

of the Estate of Jan Biel, Deceased,

	Plaintiff-Appellant,

	v.

THE CITY OF BRIDGEVIEW, a Municipal

Corporation, WILLIAM HAMMAN, Defendants

(Lyons Electric Co, Inc., and Pinner

Electric Inc.,

	Defendants-Appellees).		

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Appeal from the

Circuit Court of

Cook County

 96 L 9628

Honorable

Sophia H. Hall,

Judge Presiding.

	PRESIDING JUSTICE McBRIDE delivered the opinion of the court:

	Plaintiff-appellant, Zofia Biel, independent administrator of the estate of Jan Biel, brought an action to recover against

defendants, City of Bridgeview and William Hamman, and defendants-

appellees Lyons Electric Co., Inc. (Lyons), and Pinner Electric,

Inc. (Pinner),1 when Jan Biel he was struck and killed by a car while crossing the street.  Plaintiff claims that defendants'

negligence caused a streetlight to be inoperable which, if

operable, would have illuminated the location where Jan Biel was

killed.  Such negligence, according to plaintiff, was a

contributing proximate cause of Jan Biel's death.  Defendants moved

for summary judgment on the basis that the inoperable streetlight

only created a condition and could not have proximately caused the accident as a matter of law.  The summary judgment motion was originally denied, but based on a motion to reconsider, the trial

court reversed itself and entered summary judgment in favor of

defendants.  Plaintiff now appeals the trial court's summary

judgment ruling. 

	Two issues are raised on review: whether the trial court

properly granted summary judgment in favor of defendants on the

ground that the nonfunctioning streetlight was only a condition and

not a proximate cause of the accident; and whether the trial court abused its discretion by allowing defendant's motion to reconsider

the denial of summary judgment in their favor.  We state the

following background facts.

	Defendants are electrical contracting companies.  Plaintiff's

first amended complaint alleged the Village of Bridgeview

contracted with defendants to make repairs on particular

streetlights within the Village.  Prior to August 21, 1995,

defendants repaired streetlights on 79th Street west of Harlem Avenue, Bridgeview, Illinois.

	On August 21, 1985, at approximately 11 p.m., Jan Biel was

killed when he was struck by a car driven by William Hamman.  At

the time of the accident, Hamman was traveling westbound on 79th Street just past the intersection of 79th Street and Harlem Avenue, Bridgeview, Illinois.  Hamman testified that he knew that one

streetlight was out which provided illumination over the median

area of 79th Street.  He also stated that the marquee signs and parking lot lights of surrounding stores, including a K mart, were

turned off.  As he was driving approximately 30 miles per hour on

79th Street, just past the intersection of 79th Street and Harlem Avenue, Hamman stated that he moved into the left-hand lane.  At

that point, something hit the windshield.  Hamman pulled to the

side of the road, called his wife, told her he may have hit

someone, and ran down to where the accident had occurred.  Hamman

said that he noticed that Biel's clothing was dark.  After the

accident, Hamman told police that he never saw Jan Biel prior to

the collision.    

	Plaintiff's first amended complaint alleged that the City of

Bridgeview contracted with defendants to manage, maintain, and

control "a certain light post which was intended to provide

sufficient lighting to that portion of 79th Street *** near its intersection with Harlem Avenue."  The complaint further alleged

that it then became defendants' duty to manage, maintain, and

control "the aforementioned light pole so as to provide sufficient

lighting to that portion of 79th Street *** near its intersection with Harlem Avenue."   Notwithstanding this duty, the complaint stated that defendants were guilty of the following negligent acts

or omissions:

					"(a) carelessly and negligently failed to

inspect said light pole at all

reasonable times;

					(b) 	carelessly and negligently failed to maintain said light pole;

					(c) 	carelessly and negligently failed to create and implement procedures to

inspect that aforementioned light

pole;

			(d) 	otherwise carelessly and negligently owned, operated, managed, maintained

and controlled said light pole."	

	At all relevant times, the complaint alleged that the

aforementioned light post was not illuminated.  As a direct and

proximate result of the defendants, "in failing to illuminate the

said light post," the complaint stated the motor vehicle driven by

Hamman struck and killed Jan Biel as he crossed 79th Street. 

	Glenn Jendrzejewski, an eyewitness to the accident, testified

that he was familiar with 79th Street and that he lived in a trailer apartment at 7858 South Harlem Avenue, Bridgeview,

Illinois.  When he saw the accident, he was sitting on a white

chair in front of his apartment.  The accident occurred on a clear, dark night at approximately 11 p.m.  He indicated that the

streetlight in the vicinity of the accident was "out" and that it

had been out for approximately a year.  In the area where the

particular light was not illuminated, the area was dark.  The

closest crosswalk was at the intersection of 79th Street and Harlem Avenue.  According to Jendrzejewski, the accident occurred about a half a block west of this crosswalk on 79th Street.  

	 Jendrzejewski testified that, prior to crossing 79th Street, Jan Biel stumbled and fell over a chain-link fence and then fell

several more times on the sidewalk.  He stated that Biel appeared

to be drunk or on heavy medication.  According to Jendrzejewski, Biel was wearing a dark green shirt, green pants, and dark socks. 

Biel then went over to a light pole that had a 40-mile-per-hour

speed limit sign affixed to it.  For a short time, Biel leaned

against the pole.  Jendrzejewski testified that Biel began crossing 79th Street.  As Biel crossed, he was wobbling back and forth as he

made it half way across the street.  Biel then stood in the middle

of the street for about 10 seconds.  A car approached, and

Jendrzejewski said that he saw Biel get hit by the front end of the vehicle on the driver's side.  Biel flew about five feet into the

air.  At that time, Jendrzejewski ran inside and dialed 911.  Prior

to impact,  Jendrzejewski said the car did not slow down. 

	Herman Caldwell, also an eyewitness to the accident, testified

that he lived in a trailer at 7858 South Harlem Avenue, Bridgeview,

Illinois.  He lived in the same double trailer as Glenn

Jendrzejewski.  He stated that he was very familiar with 79th Street west of Harlem Avenue.  On the night of the accident,

Caldwell stated he witnessed the accident while sitting in a lawn

chair next to Jendrzejewski.  He testified that it was a nice

summer evening, visibility was clear, and the streets were dry.  Caldwell further stated that all of the streetlights on the north side of 79th Street were working on the evening of the accident with the exception of one, the light pole with the 40-mile-per-hour

speed limit sign.  Caldwell testified that the light had been out

for at least a few months.

	According to Caldwell, he was sitting in front of 

Jendrzejewski's trailer when he first saw  Biel.  Biel appeared very drunk.  He said that Biel kept falling over a chain-link fence

and onto the sidewalk.  Caldwell said he saw Biel stumble and fall

at least four or five times.  Biel then leaned on the lamppost with the burned out streetlight and the 40-mile-per-hour speed limit

sign.  Caldwell said he asked Biel after he fell if he would like

to sit down for a few minutes and if Biel would like a ride home. 

Biel who was slurring his words, responded no thank you.  Biel

waited at the lamppost for about 20 seconds.  

	Caldwell testified that Biel began crossing 79th Street at the light pole with the 40-mile-per-hour speed limit sign on it.  Prior

to crossing, Caldwell said, Biel looked east toward Harlem Avenue

for oncoming traffic.  He then began staggering into the street. 

When Biel had moved about four feet into the street, he was hit by

a fast moving on-coming vehicle.  Biel's body flew high into the

air and landed near the double yellow line next to the left-hand

lane.  After the accident, Caldwell said, he ran out into the

street to block traffic.  According to Caldwell, the left front

headlight on the vehicle was out prior to the accident.  

	Caldwell also said that there were no crosswalks at the place

where Biel was crossing.  However, he did testify that he had noticed other people crossing 79th Street where the accident occurred.  He also stated that he had crossed the street there and

that he observed others crossing at that location daily.

	James O'Donnell, a doctor of pharmacy and expert in alcohol

effects, testified that he examined documents related to the

alcohol levels in the decedent, Jan Biel, at the time of the

accident.  O'Donnell opined that Biel was severely intoxicated on

August 21, 1995, with a blood-alcohol level of .258.  O'Donnell

based his opinion on the "alcohol test" taken from Biel at Christ

Hospital and the testimony of the eye-witnesses who saw him

stumbling prior to the accident.  He further stated that a person

with a blood-alcohol level of .258 would be severely impaired and

would have difficulty walking.  

	In her complaint, plaintiff alleged that defendants were

negligent because they carelessly and negligently failed to

inspect, maintain, and illuminate the streetlight, and these

negligent acts were a proximate cause of Jan Biel's death.  As

noted by plaintiff, defendants initially filed motions in the trial

court for summary judgment on the ground that failure to repair the

streetlight at issue was only a condition and not a proximate cause

of Jan Biel's death.  The motions were stricken by Judge Philip

Bronstein in an order entered June 4, 1999, because counsel for defendants failed to appear.  Defendants then filed a second motion

for summary judgment on the "cause vs. condition analysis."  The

second summary judgment motion was denied by Judge Sophia Hall on December 6, 1999.  

	On August 3, 2000, defendants sought leave to file a motion to

reconsider Judge Hall's ruling entered on December 6, 1999.  On the

same day, leave was granted to file the motion, but Judge Donald

O'Brien limited the motion to the issue of, " 'cause vs. condition'

and the applicability of [First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 720 N.E.2d 1068 (1999)] and other cases on the issue subsequent to 12/6/99."  Also on August 3, 2000, defendants

filed their motion to reconsider the December 6, 1999, order on two

grounds: that the trial court ruled on summary judgment without the

benefit of the supreme court's decision in Galman, cited above; and that Caldwell's and O'Donnell's depositions were not available for

the court's consideration in defendants' prior motion for summary

judgment.  On September 20, 2000, Judge Sophia Hall granted

defendants' motion to reconsider on the ground that she had

misapplied the law and entered summary judgment in defendants'

favor.  Plaintiff appeals the entry of the motion to reconsider and

the summary judgment order in favor of defendants.      We first address whether the trial court properly entered summary judgment

on the basis that the inoperable streetlight was only a condition

and not a proximate cause of Biel's death.  The supreme court has

stated:  

		"Summary judgment is *** proper only when the

resolution of a case hinges on a question of

law and the moving party's right to judgment is clear and free from doubt.  [Citation.]  In

considering a motion for summary judgment, the

court must consider the affidavits,

depositions, admissions, exhibits, and

pleadings on file and has a duty to construe

the evidence strictly against the movant and

liberally in favor of the nonmoving party.

[Citation.]  If the court finds that the

record contains any material issues of genuine

fact, the motion for summary judgment must be

denied.  A triable issue of fact exists where

there is a dispute as to material facts or

where the material facts are undisputed but

reasonable persons might draw different

inferences from those facts. [Citation.]  As

in all cases involving summary judgment, we

review the evidence in the record de novo."  In re Estate of Hoover, 155 Ill. 2d 402, 410- 11, 615 N.E.2d 736 (1993). 

	The supreme court has also held: "To recover damages based upon a defendant's alleged negligence, a plaintiff must allege and

prove that the defendant owed a duty to the plaintiff, that

defendant breached that duty, and that the breach was the proximate

cause of the plaintiff's injuries. [Citation.]"  Galman, 188 Ill. 2d at 256.  In the instant case, plaintiff's first amended complaint alleges the elements set forth above.  In granting summary judgment, however, the trial court found that defendants'

failure to replace the inoperable streetlight was, as a matter of

law, a condition as opposed to a proximate cause of Biel's injury.

	In Galman, the supreme court held: "Illinois courts draw a distinction between a condition and a cause."  Galman, 188 Ill. 2d at 257.  The court further stated:  

		"Indeed if the negligence charged does nothing

more than furnish a condition by which the

injury is made possible, and that condition

causes an injury by the subsequent,

independent act of a third person, the

creation of the condition is not the proximate

cause of the injury.  Briske v. Village of Burnham, 379 Ill. 193, 199 [, 39 N.E.2d 976] (1942); Merlo v. Public Service Co., 381 Ill. 300, 316[, 45 N.E.2d 665] (1942); see also

Thompson [v. County of Cook,] 154 Ill. 2d [374,] 383[, 609 N.E.2d 290] (1993)].  The test that should be applied in all proximate

cause cases is whether the first wrongdoer

reasonably might have anticipated the

intervening efficient cause as a natural and

probable result of the first party's own

negligence.  [Citation.]"  Galman, 188 Ill. 2d at 257. 

	The Galman court also identified a second test for determining proximate cause which was established in Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455, 605 N.E.2d 493 (1992).  Specifically, it stated:

		"In Lee the court held that the term 'proximate cause' describes two distinct

requirements: cause in fact and legal cause.

[Citation.]  Cause in fact exists where there

is a reasonable certainty that a defendant's

acts caused the injury or damage. [Citation.] 

A defendant's conduct is a cause in fact of

the plaintiff's injury only if that conduct is

a material element and a substantial factor in

bringing about the injury.  [Citation.]  A

defendant's conduct is a material element and

a substantial factor in bringing about an

injury if, absent that conduct, the injury

would not have occurred.  [Citation.]  'Legal

cause,' by contrast, is essentially a question

of foreseeability.  [Citation.]  The relevant

inquiry here is whether the injury is of a

type that a reasonable person would see as a

likely result of his or her conduct.

[Citation.]"  Galman, 188 Ill. 2d at 257-58.

	The court noted that the parties in that case were under the mistaken impression that the two tests were incompatible.  Instead,

the supreme court held that although Briske, Merlo, and Thompson employed a different vocabulary than Lee, all of the cases asked the same question: "Was defendant's negligence a material and

substantial element in bringing about the injury, and, if so, was

the injury of a type that a reasonable person would see as a likely

result of his or her conduct?"  Galman, 188 Ill. 2d at 259.  It went on to conclude that, "[f]ar from conflicting Briske, Merlo, Thompson, and Lee uniformly embrace the traditional proximate cause test that has governed Illinois for the better part of this

century. [Citation.]"  Galman, 188 Ill. 2d at 258-59.

	With the above standard in place, we must determine whether

the requirements of proximate cause, specifically cause in fact and

legal cause, have been satisfied in the instant case.  

	Based upon the pleadings and depositions in this record, we

find that a genuine issue of material fact exists as to whether

defendants' conduct in failing to replace the streetlight was a

material element and a substantial factor in Jan Biel's death.  We

note that, "[w]here reasonable minds could differ, whether the defendant's conduct was of such a substantial factor in bringing

about the plaintiff's injury is for the jury to decide."  Lee, 152 Ill. 2d at 455.  At the very least, from the testimony presented,

it can be inferred that Biel's death would not have occurred but

for an inoperable streetlight above the accident location, and that Biel may have avoided the accident in the event the streetlight was

illuminated.  Further, Jendrzejewski and Caldwell both testified

that the streetlight was inoperable where Biel elected to cross. 

They also said that the lights of the K mart and other surrounding

business were turned off and that the area where Biel crossed 79th Street was dark.  Based upon these facts, we conclude that a

genuine issue of material facts exists as to whether defendants'

conduct was a material element and a substantial factor in bringing about Biel's death. 

	We also find that a material question of fact exists as to whether defendants' failure to repair, maintain, and illuminate the

streetlight in question was the legal cause of Jan Biel's death. 

As we noted above, legal cause is essentially a question of foreseeability.  Galman, 188 Ill. 2d at 258.  "The relevant inquiry here is whether the injury is of a type that a reasonable person

would see as a likely result of his or her conduct."  Galman, 188 Ill. 2d at 258.

	Here, defendants suggest that they could not have reasonably

foreseen that "allowing an inoperative streetlight to exist on 79th Street mid block would likely result in plaintiff's decedent Jan

Biel: (1) failing to utilize nearby crosswalks; (2) deciding to

cross the street mid block; (3) at a location where the streetlight

was out; (4) wearing dark clothing; (5) being extremely

intoxicated; (6) staggering and not able to control his own

movement; and (7) standing in the middle of 79th Street in such a condition for at least 10 seconds."  According to defendants, as a matter of law, the independent acts of Jan Biel were not 

reasonably foreseeable.  We disagree.  

	While Jan Biel's conduct may have been contributorily

negligent, we cannot say as a matter of law that Biel's death was

not foreseeable to defendants which failed to maintain, repair, and

illuminate the streetlight at the location where Biel crossed 79th Street.  As we noted above, Jendrzejewski and Caldwell both

testified that the streetlight was "out" where Biel elected to

cross.  There seems to be no dispute that defendants had contracted with the City of Bridgeview to maintain the streetlight at issue. 

Additionally, Jendrzejewski said that the light had been out for

approximately one year.  Caldwell testified that the light had been

out for at least a few months.  Both Jendrzejewski and Caldwell

said that the lights of surrounding businesses had been turned off,

making the area very dark.  Further, Caldwell testified that he

crossed 79th Street where Biel crossed and that he had seen other pedestrians using the exact same location to cross almost daily. 

Based upon the testimony presented, we conclude that a question of

fact exists as to whether Biel's injury was foreseeable to defendants.  

	Further, we are not persuaded by the city ordinances and state

laws relied upon by defendants in this case.  The statutes relied

upon by defendants concern a pedestrian's duties to yield to

drivers under certain conditions and to remain alcohol and drug free upon a street, highway, or public place.  These statutory

violations relate to the issue of Jan Biel's contributory

negligence and not to whether it was foreseeable to defendants that

the inoperable streetlight could have resulted in an injury to

Biel.

	In Lee, cited above, an intoxicated pedestrian entered a Chicago Transit Authority (CTA) right-of-way at the intersection of

Kedzie Avenue and the Ravenswood railway line in Chicago.  The

right-of-way was posted with signs warning of danger and electric

current.  Also, the CTA had laid uneven-edged boards, approximately

six inches apart, called "jaws" in order to inform pedestrians that

the area was restricted.  Despite these warnings, the pedestrian,

who had a blood-alcohol level of 0.341, urinated on the third rail

of the CTA railway and sustained fatal injuries.  On review, the

supreme court held that, despite the fact the pedestrian was

intoxicated, the "decedent's intoxication was properly a consideration only with respect to his contributory negligence."  Lee, 152 Ill. 2d at 454.  In this case, Biel's conduct in violating local ordinances is a consideration in regard to his contributory

negligence, not to whether it was foreseeable to defendants that

the inoperable streetlight could have caused Biel's injury.

	Defendants claim that the facts in this case are analogous to those in Galman and that, therefore, the disposition in both cases should be the same.  In Galman, Howard Dobson drove a tanker truck for ADM Trucking, Inc. (ADM).  At about 3 p.m. on Tuesday, November 21, 1989, Dobson parked his truck mid block on the north side of

Lawrence Avenue, 41 feet from the intersection of English Street in

Springfield, Illinois.  Parking was prohibited on the north side of

Lawrence Avenue between the hours of 7 a.m and 6 p.m, Monday

through Saturday.  After Dobson parked his truck, May Phillippart,

an 18-year-old French foreign exchange student, began walking south

on English Street.  At the intersection of English Street and

Lawrence Avenue, Phillippart did not use the marked crosswalk. 

Instead, she walked 41 feet from the intersection plus the full

length of Dobson's truck before deciding to cross Lawrence Avenue. 

At the front of Dobson's truck, Phillippart entered Lawrence Avenue and waited for traffic to clear.  After taking 1 1/2 slow steps

into the center of the westbound lane of Lawrence Avenue, she began

running across the street.  At about the center line of Lawrence

Avenue, Phillippart was struck by the front passenger's side of a

car driven by Amanda Galman.  She died from her injuries.   Section

80.04 of the City of Springfield Code provided: " 'Pedestrian

crossings between intersections shall be prohibited in the interest

of public safety, except where there may be a marked crosswalk.' " 

Galman, 188 Ill. 2d at 255. 

	Following Phillippart's death, the National Health Service of

France (NHSF) paid her estate $452,794.82 as compensation for

medical expenses. First Springfield Bank & Trust, acting on behalf

of her estate, sued Galman, Dobson, and ADM for negligence.  It

also sued ADM for violating section 5 of the Public Nuisance Act (Ill. Rev. Stat. 1989, ch.100 1⁄2, par. 26.(5) (now 720 ILCS 5/47-

5(5) (West 1998))) which made it a nuisance to obstruct or encroach

upon public highways.  Galman, 188 Ill. 2d at 255.  The jury entered a verdict, finding that Phillippart's damages totaled $1

million and that Phillippart was 45% at fault.  Thus, the jury

awarded First Springfield $550,000.  Dobson and ADM moved to reduce

the jury award by the amount paid to Phillippart's estate by the

NHSF.  Dobson and ADM moved for judgment notwithstanding the

verdict on both counts and the motions were denied by the trial

court.  

	The appellate court affirmed the trial court's judgment.  In

a dissent, Justice Steigmann concluded that Dobson and ADM were

entitled to judgment notwithstanding the verdict because the

illegally parked tanker truck was not the proximate cause of

Phillippart's injuries.  Instead, the truck was merely a condition

that allowed Phillippart's injuries to occur.  Dobson and ADM

appealed the appellate court's judgment on several bases including

the ground that the illegally parked truck was not the proximate

cause of Phillippart's injuries.

	The supreme court concluded that the ADM's tanker truck was a

cause in fact of Phillippart's injury because, had Dobson not

parked the truck illegally on Lawrence Avenue, Phillippart's

injuries almost certainly would not have occurred.  Galman, 188 Ill. 2d at 260.  However, the court found that  the tanker truck

was not the legal cause of Phillippart's injuries because it was not reasonably foreseeable that violating a no-parking sign and

parking mid-block would result in the death of a young woman. 

Galman, 188 Ill. 2d at 261-62.  Therefore, the court held that the illegally parked tanker truck was not the proximate cause of

Phillippart's injuries.  Galman, 188 Ill. 2d at 262.

	In our view, Galman is distinguishable from the instant case.  As we noted above, we find that factual questions remain as to

whether the inoperable streetlight was a cause in fact of Biel's

injuries.  As we noted above, one could reasonably infer that

defendants' failure to maintain the streetlight at issue was a

material and substantial element in Biel's death and that absent

defendants' conduct the injury would not have occurred.  Further,

unlike Galman, we conclude that it was foreseeable that defendants'  failure to repair, maintain, and replace an inoperable streetlight

might result in injury to a pedestrian crossing 79th Street at the relevant location.  The foreseeability of an injury or death was

supported by Caldwell's testimony that he noticed other people crossing 79th Street where the accident occurred, that he had crossed the street there, and that he observed others crossing 79th Street at that location daily.  Further, Hamman testified that he

never saw Biel before he struck him.  Finally, there was testimony

that the area where Biel was hit was dark.  As a result, the facts

in Galman are inapposite.

	We conclude that the trial court's finding at the summary

judgment stage that the inoperable streetlight was merely a condition and not a proximate cause of Biel's injuries was

incorrect.  We therefore conclude that the trial court erred in

granting summary judgment in favor of defendants.  As a result, we

reverse the trial court's ruling in regard to the summary judgment

in favor of the defendants.

	Because of our finding with regard to the first issue, the 

question of whether the motion to reconsider was properly granted

is effectively moot.  The decision of the trial court is reversed.

	Reversed.

	cCerdaERDA Aand BURKE, JJ., concur.