Every Illinois personal injury lawyer dreads the “permitted and intended user” defense. You see it every time you represent someone who was injured while on public property. The law in Illinois says that a municipality owes a duty or ordinary care to people using public property only if the injured person was a “permitted and intended” user” of the property. It seems that regardless of how perfectly natural the use of the property is, lawyers for the village, town or City will file that motion, arguing that the injured party was neither a permitted, nor an intended user of the area.
The First District Appellate Court recently faced this precise issue in Gutstein v. City of Evanston. In that case, the plaintiff, Elizabeth Gutstein, a resident of the City of Evanston, was pulling some weeds in her backyard. She went to toss them in a bin specifically designated by the City as a “Yard Waste” disposal bin. The bin was located in an adjacent alley, just past her backyard gate. After reaching her gate, the plaintiff was momentarily distracted. As she took a step into the alley, she fell due to the presence of a large depression in they alley. As a result of her fall she suffered serious injuries to her elbow. Ms. Gutstein sued, alleging that the City of Evanston failed to properly maintain the alley. The case went to trial. After plantiff had put on her evidence, the City of Evanston moved for a directed verdict, arguing[among other grounds] that the plaintiff was not an “intended” use of the alley. The trial court disagreed and a jury returned a large verdict for plaintiff – a rarity in slip and fall cases. The City of Evanston appealed, maintaining that Gustein was not an intended user.
The Appellate Court first acknowledged the relevant portion of the Tort Immunity Act, which provides: “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…745 ILCS 10/3-102(a). Both parties stipulated that Gustein was a permitted user of that alley. The question then – was Gutstein an intended user? The law requires that there be some affirmative, physical manifestation of the City’s intent that person could use the area.
The Court noted that there were no physical manifestations. But, Evanston had a policy requiring residents to place their yard waste in the alley for pickup. If the bins weren’t placed in the alley, the policy explicitly stated that they would not be picked up. Borrowing a phrase from an earlier opinion, the Appellate Court decided that by enacting that policy Evanston had created a “safe harbor” in which plaintiff could walk in the alley to dump yard waste into the bin. Ms. Gutstein was indeed an “intended user” of the alley.
The opinion also gives some guidance on discretionary immunity, but that discussion is for another post. Congrats to Corboy & Demetrio on this win.