Madison County Circuit Judge Sarah Smith denied the City of Highland’s motion for summary judgment in a pedestrian’s lawsuit alleging she tripped and fell on a crumbled curb while walking to a Halloween event.
“The court finds sufficient evidence that plaintiff has met her burden to show she was a permitted and intended user of the sidewalk where she was injured; and therefore, sufficiently allege defendant had a duty of care to maintain said property for her use,” Smith wrote in the Oct. 5 order.
In its motion for summary judgment, Highland argued that it did not owe a duty to plaintiff Vicki Durham because she was injured on a curb, and municipalities do not have a duty to maintain a curb for pedestrian traffic.
Ripplinger
Smith wrote in her order that a municipality generally does not have a duty to maintain the streets for pedestrian use because pedestrians are not the intended users of a street. However, they do have a duty to maintain crosswalks for pedestrian use.
Smith wrote that the nature of the property at issue will determine if Durham was an intended user of the location where she was injured.
“The nature of the property, the pavement markings, signs, and other physical manifestations of the intended use of the property must be considered to determine if the defendant had a duty to maintain the road for pedestrian use where plaintiff was injured,” the order states.
Smith wrote that the property had a configuration of a “fanned” sidewalk adjacent to and leading up to the curb and crosswalk. The “fanned” part of the sidewalk is “a physical manifestation by the city that almost directs a pedestrian to cross the street at that point.”
“Therefore, based on the appearance of where the plaintiff stepped off of the curb, the city did in fact have the intent for the pedestrian to cross in this area. It is also reasonably foreseeable that a pedestrian would cross at that exact point, and the city should have maintained that area in a reasonably safe condition,” the order states.
Highland filed a motion for summary judgment and supporting memorandum on Dec. 22, 2020, through attorney Charles Pierce of Pierce Law Firm in Belleville.
Highland argued that pedestrians crossing outside the designated crosswalks are not considered intended and permitted users of the property, meaning the city had no duty to Durham.
In its memorandum, Highland argued that the alleged hazardous condition is outside the “clearly-delineated crosswalk.”
The defendant argued that the crumbled area of the ramp was outside the crosswalk and outside the intended area for pedestrian traffic.
“There can only be one conclusion: the plaintiff was outside the crosswalk,” the memorandum stated.
“Highland provided a safe means of crossing the street as evidenced by the fact that the plaintiff’s other family members had crossed the street successfully prior to the plaintiff attempting to do so outside of the crosswalk,” it continued. “Nothing extends that duty to the area where plaintiff fell.”
Highland also argued that there are no exceptions to the intended and permitted user rule based on proximity.
“If this court were to go down that rabbit hole, exceptions would swallow the rule,” the memorandum stated.
Durham filed an objection to the motion for summary judgment on Feb. 12 through attorney George Ripplinger of Ripplinger & Zimmer LLC in Belleville.
She argued that the sidewalks extended to the curb and that someone approaching the crosswalk would step off the curb in order to proceed.
According to the complaint, Durham was walking with her family on their way to a Halloween event in Highland at about 2 p.m. on Oct. 26, 2018. They were walking on the north side of Ninth Street near the intersection of Washington Street. While exiting the sidewalk to walk on the crosswalk, Durham claims he fell and suffered injuries to her left hip.
Durham claims Highland “caused or permitted the sidewalk curb to be and remain in a poor state of construction and repair, and caused or permitted crumbling and broken parts to be and remain on the sidewalk curb at the above described location, so that the curb was rough, uneven and corroded, and unsafe for pedestrian use."
Smith has set the trial for a jury trial in June 2022.
Madison County Circuit Court case number 19-L-1217