Krivokuca v. City of Chicago
2017 IL App (1st) 152397
| Ill. App. Ct. | 2017Background
- On April 18, 2013 Mirko Krivokuca’s pickup fell into a sinkhole near 96th St. & Houston Ave.; he was injured and his vehicle later impounded and allegedly destroyed by the City of Chicago.
- Plaintiff sued the City (filed July 2, 2013) asserting (Count I) ordinary negligence/premises liability and (Count II) res ipsa loquitur; later added property-damage and negligent-misrepresentation counts but those were dismissed or voluntarily dropped.
- The City moved under 735 ILCS 5/2-619(a)(9) to dismiss Count II, arguing the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-102(a)) requires proof of actual or constructive notice, which is incompatible with a res ipsa theory. The trial court dismissed Count II with prejudice.
- Discovery revealed City crews repaired a small water-main leak at or near the site in January 2013 (repair clamp installed) and a larger water-main/sewer collapse and replacement in April 2013; City witnesses testified the clamp appeared intact in April and causes of the sinkhole were uncertain.
- The City moved for summary judgment on Count I under section 3-102(a) (no actual or constructive notice) and alternative discretionary-immunity defenses. The trial court granted summary judgment for the City on the personal-injury negligence claim for lack of actual or constructive notice. Plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether res ipsa loquitur may be used to impose municipal liability despite the Act's notice requirement | Res ipsa has long been applied to municipalities; the Act merely codified common-law duties and did not eliminate res ipsa | Section 3-102(a) imposes a statutory notice element (actual or constructive) not present in res ipsa; that affirmative statutory requirement bars res ipsa as a route to municipal liability | Res ipsa cannot be used to circumvent the Act’s notice requirement; dismissal of Count II affirmed |
| Whether the City was liable under section 3-102(a) for plaintiff’s injuries (ordinary negligence) | Testimony about old pipes and two breaks within three months raises an inference of aged/deteriorated infrastructure and constructive notice | No evidence of actual notice; testimony at most shows pipe age, not notice of a specific defective condition that caused the sinkhole | Summary judgment for City affirmed: plaintiff failed to prove actual or constructive notice |
| Whether testimony about pipe age and prior repair created a genuine issue of constructive notice | Age and prior repair (January clamp) support an inference the City knew/should have known of deterioration | Age alone is not proof of deterioration or notice; no expert or direct evidence tying prior conditions to the April failure | Court: Age/prior repair testimony insufficient; no evidence of notice of the specific defect that caused the injury |
| Whether City’s failure to show an adequate inspection system (3-102(b)) defeats summary judgment | City offered no proof of a reasonably adequate inspection system, so constructive notice cannot be rebutted | Plaintiff still bears initial burden to prove actual or constructive notice under 3-102(a); failure to do so is fatal regardless of 3-102(b) | Irrelevant to outcome: plaintiff failed to meet 3-102(a) burden; summary judgment stands |
Key Cases Cited
- Collins v. Superior Air-Ground Ambulance Service, Inc., 338 Ill. App. 3d 812 (explaining res ipsa loquitur as evidentiary rule permitting inference of negligence)
- Van Meter v. Darien Park District, 207 Ill. 2d 359 (recognizing defendant’s assertion of Act immunity is an affirmative matter under section 2-619)
- Burke v. Grillo, 227 Ill. App. 3d 9 (plaintiff bears burden to prove defendant’s notice; summary judgment where no evidence defect was visible or longstanding)
- Roberts v. City of Sterling, 22 Ill. App. 2d 337 (pre-Act application of res ipsa against municipality)
- Bolger v. City of Chicago, 198 Ill. App. 123 (pre-Act application of res ipsa against municipality)