dissenting:
I dissent.
The record in the instant case establishes that emergency city vehicles used the medians as and when necessary to get around traffic. Therefore, the use of the median in the case at bar by the emergency vehicle was both permissible and, based on the record in this case, foreseeable.
Although vehicles are permitted to use the medians, the City does contend that it has no duty to maintain or make improvements to the medians in a manner that prevents a dangerous condition to any vehicles that use the median. The majority, on appeal, adopts the City’s contention. However, the Illinois Supreme Court declared more than a quarter century ago that “when a city creates a hazardous condition and someone is injured as a consequence it must respond in damages.” Baran v. City of Chicago Heights, 43 Ill. 2d 177, 181, 251 N.E.2d 227 (1969).
Further, section 3 — 102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) 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) (West 1994).
Therefore, under the Act, the City is liable if, after it constructs or improves public property “it appears from its use that [the City] has created a condition that is not reasonably safe.” 745 ILCS 10/3— 103(a) (West 1994). Liability arises when the undertaken improvement itself creates an unreasonably dangerous condition. Ross v. City of Chicago, 168 Ill. App. 3d 83, 87, 522 N.E.2d 215 (1986).
The City cites the supreme court’s decision in DiBenedetto v. Flora Township, 153 Ill. 2d 66, 605 N.E.2d 571 (1992), to support its contention that it owed no duty under the circumstances in this case. However, DiBenedetto is distinguishable from the present case. In DiBenedetto, the decedent’s automobile crossed over the oncoming traffic lane, entered a five- to seven-foot-wide shoulder area on the edge of a paved roadway, crossed over the shoulder, landed in the drainage ditch and immediately overturned, killing the decedent. The plaintiff maintained that the drainage ditch alongside the road was not safe for vehicular traffic and sought to hold the township liable for its failure to make the drainage ditch safe for vehicular traffic. DiBenedetto, 153 Ill. 2d at 70. The supreme court found that the accident was not of the type that could have been expected under normal driving circumstances and held that there was no duty to make the drainage ditch safe for vehicular travel. DiBenedetto, 153 Ill. 2d at 72.
Unlike DiBenedetto, the instant case involves an emergency vehicle. Also, the DiBenedetto roadway, shoulder and ditch are dissimilar. Further, the record establishes that emergency vehicles routinely drive on or across medians to get around traffic in the city. Additionally, in the instant case, it was foreseeable that emergency vehicles would travel onto and traverse the median. Here, defendant had a duty either to make the median reasonably safe and free of obstructions, or warn of obstructions on the median that were obscured so that emergency personnel could have warning that the median was not safe to traverse.
Still further, unlike DiBenedetto, the record establishes that the area where the incident occurred in this case directly adjoins the roadway. Again, it was reasonably foreseeable that an emergency vehicle might come into contact with an excavation or other artificial condition built adjacent to a roadway. See Kubala v. Dudlow, 17 Ill. App. 2d 463, 469, 150 N.E.2d 643 (1958).
In this appeal, I agree with the plaintiffs contention that “the issue *** centers on the City’s duty in making ‘improvements’ to medians and to warn of dangers relating to obstacles on such medians, when it knows that they are routinely used by emergency vehicles and it is foreseeable that they could be used in other emergency situations.” The Illinois Supreme Court has addressed this issue and has stated:
“[W]hen a city creates a hazardous condition and someone is injured as a consequence it must respond in damages, just as others are required to do. *** A municipal corporation, like an individual or a private corporation, is required to exercise its rights and powers with such precautions as shall not subject others to injury. The rule which protects it in the exercise of its governmental functions should not be construed to relieve [it] from liability when the plan devised, if put in operation, leaves the city’s streets in a dangerous condition for public use.” Baran v. Chicago Heights, 43 Ill. 2d at 181, citing City of Chicago v. Seben, 165 Ill. 371, 46 N.E. 244 (1897).
The decision of the trial court should be affirmed.