Ann Maher Jun. 5, 2014, 7:04am

Madison County Circuit Judge William Mudge today will hear a motion to dismiss a personal injury suit against the City of Granite City brought by a man who claims he suffered foot injuries when he fell on uneven asphalt after picking up his son from daycare.

Defense attorney Eric Evans of Granite City argues that a municipality does not owe a duty of reasonable care to pedestrians who walk on streets outside of crosswalks because a pedestrian is not an intended user of the street.

Plaintiff Kelly Timmons claims in his suit filed last year that he was picking up his four-year-old son from a day care center known as Wee Care Learning Center on Dec. 5, 2012, at 2601 Grand Avenue. The pair was walking back to Timmons’s vehicle when Timmons fell on an uneven section of the road, according to the complaint.

Timmons blames Granite City for causing his fall, saying the city negligently allowed a large section of its road to remain uneven, allowed a drop-off of several inches on the surface of the road, failed to repair a deteriorating section of the road, failed to erect barriers to warn of the unsafe condition and failed to repair the defective road.

He is represnted by William J. Mateyka of Mateyka and Associates in Granite City and is seeking a judgment of more than $50,000, plus costs.

Evans further argues that the liability of a municipality with respect to its streets is limited to their use by motor vehicles.

"When pedestrians use streets s public walkways, the law imposes no duty upon a municipality to safeguard pedestrians," Evans wrote.

"While a pedestrian may be permitted to use a street for walking, jogging, or bicycling, a pedestrian is not an intended user of a street as a matter of law."

In a May 1 order setting the June 5 hearing, Mudge noted that motion to dismiss "has been scheduled several times and continued over the objection of the defendant; and that plaintiff has not filed a responsive pleading to the motion to dismiss."

He wrote that the motion was previously set to be heard March 13.

"Plaintiff fails to appear, but the court is in receipt of plaintiff's motion to continue received this date via U.S. Mail," he wrote.

"The motion to continue acknowledges that no more continuances were to be granted to plaintiff. However, plaintiff's counsel asserts that he is attending to the medical needs of his spouse and is therefore unavailable as he is a solo practitioner."

Madison County Circuit Court case number: 13-L-2013.

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