MIRKO KRIVOKUCA, Plаintiff-Appellant, v. THE CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellee.
Docket No. 1-15-2397
Appellate Court of Illinois, First District, Sixth Division
February 17, 2017
2017 IL App (1st) 152397
JUSTICE CUNNINGHAM
Appeal from the Circuit Court of Cook County, No. 13-L-7598; the Hon. John H. Ehrlich, Judge, presiding.
Illinois Official Reports
Appellate Court
Krivokuca v. City of Chicago, 2017 IL App (1st) 152397
Judgment: Affirmed.
Counsel on Appeal: Deutschman & Associates, P.C., of Chicago (Jeffrey S. Deutschman and Bradley A. Skafish, of counsel), for appellant. Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Carl Newman, Assistant Corporation Counsel, of counsel), for appellee.
OPINION
¶ 1 In this negligence action against the defendant-appellee the City of Chicago (City), plaintiff-appellant Mirko Krivokuca (plaintiff) appeals from (1) the order of the circuit court granting the City‘s motion to dismiss the second negligence count of the plaintiff‘s complaint premised upon the doctrine of res ipsa loquitur and (2) the subsequent order granting summary judgment to the City with respect to the first count of the complaint asserting ordinary negligence. We affirm the circuit court‘s orders in favor of the City.
¶ 2 BACKGROUND
¶ 3 On the morning of April 18, 2013, the plaintiff was driving his pickup truck near the intersection of 96th Street and Houston Avenue in Chicago. According to his pleadings, after the vehicle struck a pothole, “a sinkhole opened up in the road, сausing the entire car to fall into the sinkhole.” At his deposition, the plaintiff testified
¶ 4 On July 2, 2013, the plaintiff filed his initial complaint, containing two counts. The first count for negligence alleged that the City was liable for, inter alia, failing to properly maintain the roadway and sewers near the site аnd “[f]ailing to repair defects *** which it knew or should have known posed a risk of property damage and injury” to members of the public.
¶ 5 Count II of the complaint was entitled “Res Ipsa Loquitur.” Count II pleaded that the City was liable to the plaintiff because “a sinkhole does not ordinarily open in a street in the absence of negligence” by the party controlling it, that the street and sewer system were under the exclusive control of the City, and that the plaintiff did not contribute to causing the sinkhole.
¶ 6 On October 3, 2013, the City filed a motion to dismiss count II of the complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure, which permits dismissal of a complaint where a claim is barred by “affirmative matter avoiding the legal effect of or defeating the claim.”
“Except as otherwise provided in this Article, 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 in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.”
745 ILCS 10/3-102(a) (West 2014).
¶ 7 The City argued that the Act‘s requirement of “actual or constructive notice” of a dangerous condition in order to hold the City liable precluded recovery under a res ipsa loquitur theory. The City reasoned that res ipsa loquitur requires only two elements—that the occurrence would not ordinarily occur in the absence of negligence and that the defendant had exclusive control of the instrumentality that caused injury—but did not require prior notice of a dangerous condition. The City argued that a res ipsa loquitur claim could not be asserted against a municipal defendant, since the Act “bars premises liability claims against municipalities unless plaintiff can prove prior notice of a dangerous condition.”
¶ 8 The plaintiff filed a response to the motion to dismiss the res ipsa loquitur count on October 16, 2013. The plaintiff did not dispute the application of
¶ 9 On November 12, 2013, the City filed a reply in further support of its motion to dismiss, in which it argued that the pre-Act decisions cited by the plaintiff did not control, and that the notice requirement in the Act precluded application of res ipsa loquitur.
¶ 10 On January 27, 2014, the City filed its answer to the original complaint. With that answer, the City asserted “statutory defenses” under
¶ 11 The record on appeal does not include a transcript from any hearing on the motion to dismiss. However, on January 30, 2014, the court entered an order granting the City‘s motion and dismissing the res ipsa loquitur count (count II) with prejudice.
¶ 12 Following the dismissal the res ipsa loquitur count, the parties engaged in discovery, during which it was revealed that the City had repaired a water main leak in January 2013 near the site of the April 2013 sinkhole.
¶ 13 On August 12, 2014, the parties deposed Timothy Dowdy and John Hosty, City personnel who had responded to the January 2013 leak and April 2013 sinkhole, respectively.
¶ 14 Dowdy, a foreman of water pipe construction for the City, had responded to the January 2013 leak. Dowdy testified that he had performed work near the intersection of 96th Street and Houston Avenue in response to a report of water percolating through a parkway. Dowdy observed “a small leak coming up in the grass in the parkway” south of the intersection. Dowdy‘s crew excavated the street and parkway and accessed the water main. He found a “small circumference crack in the water main” which he described as “a hairline crack all the way around” the pipe.
¶ 15 The water main at the site had a six-inch diameter. Dowdy testified that “a minimum size of eight inches is used in today‘s construction,” although he did not know when that change was made. He agreed that since the main had a six-inch diameter, it was probably an “original pipe” but he had “no idea” how old it was. Asked if it could be 100 years old or more, he answered: “it could be. I have no idea.”
¶ 16 Dowdy testified that he repaired the January 2013 leak by installing a repair clamp, which “goes over the entire pipe and tightens down, a watertight seal.” He testified that the leak was completely
¶ 17 Dowdy was shown a work order concerning the April 2013 sinkhole repair. He acknowledged “it could be the same water main” as the January 2013 leak but could not tell if the April 2013 water main break was at the same location as his January 2013 repair.
¶ 18 Dowdy testified that he is not an engineer and did not know the cause for the January 2013 leak. Dowdy answered negatively when asked if the January 2013 leak caused the sinkhole in April 2013; he testified that “there was no leaking” after his repair in January 2013, and he had not seen anything else at that time to cause a concern.
¶ 19 John Hosty, a water pipe foreman with the City, testified that on April 18, 2013, his crew was dispatched to fix a broken water main at a sinkhole south of the intersection of 96th Street and Houston Avenue. Hosty testified that a section of approximately 20 to 30 feet of the water main “was just collapsed” to a lower elevation from the rest of the water main. Hosty‘s crew replaced approximately 100 feet of the water main at the site.
¶ 20 Hosty acknowledged that the water main at the site of the sinkhole was a six-inch diameter main. He agreed that the six-inch diameter indicated that the water main was at least 50 years old, as “Most of the six inch [pipes] were before the [19]50s.” Hosty was not aware of any protocols used by the City to identify aging or defective pipes, or how it was decided when the City wоuld replace old sections of pipe.
¶ 21 Hosty recalled that he heard his supervisors refer to a prior repair near the same location. Hosty recalled that, in his work on the water main in April 2013, he found the clamp that had been installed by Dowdy‘s crew in January 2013. Hosty testified that he observed that the clamp was intact and in “good working order.” Hosty denied that the water main break in April 2013 was a sign that the prior repair was not done correctly, and he stated that the crew performing the January 2013 repair “would have known that day” if the repair was not successful.
¶ 22 Hosty testified that he had been involved in replacing sectiоns of pipe that were from “Before the 50‘s,” but he answered negatively when asked if there is a certain age at which the City starts replacing pipes. Hosty testified that sinkholes were “kind of common” and can be caused by broken water mains. However, he testified that sinkholes may also be caused by “voids in sewers,” meaning a crack or hole in the sewer pipe, independent of the water main.
¶ 23 Hosty testified that at the sinkhole site in April 2013 he observed a broken sewer as well as a broken water main. Hosty could not tell if the broken sewer was caused by the water main break or vice versa. He agreed it was possible that the water main could have broken due to the collapsing street and sinkhole (rather than the broken main causing the sinkhole). He also agreed that erosion caused by heavy rain could cause a sinkhole and that it is not possible to know exactly what caused the April 2013 sinkhole.
¶ 24 Hosty answered negatively when asked if it was “out of the ordinary to have two water main breaks at essentially the same location in a period of three months.” He stated that he had seen this before with older sections of pipe, but it was “[n]ot very common.” Hosty did not know of any reason for there to be two water main breaks at the same location in January
¶ 25 On September 4, 2014, the plaintiff filed an amended complaint, which realleged the negligence claim in count I and the res ipsa loquitur claim in count II (acknowledging that, as count II was previously dismissed, it was reasserted strictly for purposes of appeal). The amended complaint also added count III, a claim for property damage for the plaintiff‘s vehicle.
¶ 26 The City answered the amended complaint on October 6, 2014. The City again asserted statutory defenses under
¶ 27 On March 16, 2015, the City filed a motion for summary judgment with respect to counts I and III of the complaint. With respect to count I for negligence, the City argued it was entitled to summary judgment pursuant to
¶ 28 On April 14, 2015, the plaintiff filed a response to the motion for summary judgment. In opposing summary judgment, the plaintiff argued “there is testimony that the infrastructure at the location of the sinkhole was approximately 100 years old and there is a reasonable inference that the water main and sewer failed due to age and deterioration.” Citing Dowdy‘s testimony, the plaintiff argued “It is a reasonable inference that an unsafe condition of the water main and/or sewer developed over time that resulted in their failure and collapse” in April 2013. The plaintiff similarly urged that Hosty‘s testimony supported “an inference that the sinkhole was caused by water leaking from the broken water main and/or broken sewer.”
¶ 29 With respect to the City‘s position that it lacked notice of a dangerous condition pursuant to
¶ 30 The plaintiff separately argued that the provision of the Act regarding immunity for discretiоnary acts did not apply
¶ 31 On May 11, 2015, the court issued a memorandum opinion and order granting the City summary judgment with respect to the personal injury claims pleaded in counts I and II. In that order, the trial court agreed with the City that it was immune pursuant to
¶ 32 The court agreed that
¶ 33 Separately, the court denied the City‘s motion for summary judgment with respect to the property damage claim in count III, insofar as the City had failed to previously assert, as an affirmative defense, that the plaintiff failed to exhaust administrative remedies.
¶ 34 Shortly after the May 11, 2015 order, the City moved for, and was granted, leave to file аn affirmative defense to count III based on the plaintiff‘s failure to exhaust administrative remedies. After filing that affirmative defense, on June 11, 2015, the City moved for summary judgment with respect to count III.
¶ 35 On July 17, 2015, the court granted the plaintiff‘s motion for leave to file a second amended complaint, which added a fourth count pleading a negligent misrepresentation claim in connection with the City‘s destruction of the plaintiff‘s vehicle.
¶ 36 The plaintiff subsequently voluntarily dismissed counts III and IV of the second amended complaint. On August 19, 2015, the court entered a corresponding order stating that, as the court had previously dismissed counts I and II in its May 11, 2015 order, there were nо remaining claims pending. The plaintiff filed a notice of appeal on August 20, 2015.
¶ 37 ANALYSIS
¶ 38 We note that we have jurisdiction as the plaintiff perfected a timely notice of appeal from the August 19, 2015 final order. See
¶ 39 The plaintiff‘s appellate brief challenges (1) the court‘s January 30, 2014, order granting the City‘s motion to dismiss count II, which asserted a negligence claim under the theory of res ipsa loquitur, as well as (2) the May 11, 2015, order granting summary judgment to the City with respect to the negligence claim in count I.
¶ 40 We first address the propriety of the trial court‘s order granting the City‘s motion to dismiss the res ipsa loquitur
¶ 41 A motion pursuant to
¶ 42 In granting the motion to dismiss count II of the plaintiff‘s complaint, the trial court apparently agreed with the City‘s argument that the notice requirement of the Act is incompatible with the elements of a claim under a res ipsa loquitur theory, and thus the Act precludes liability under that theory. Notably, on appeal, the City makes different arguments with respect to res ipsa loquitur from the argument asserted in its motion to dismiss before the trial court. However, we need not address these new arguments raised by the City on appeal, as our de novo review leads us to agree that the notice requirement of
¶ 43 Res ipsa loquitur, although often pleaded separately from an ordinary negligence claim, is not truly an independent cause of action, but rather a “rule of evidence relating to the sufficiency of plaintiff‘s proof” to establish a defendant‘s negligence. (Internal quotation marks omitted.) Collins v. Superior Air-Ground Ambulance Service, Inc., 338 Ill. App. 3d 812, 816 (2003). “The res ipsa loquitur doctrine is a species of cirсumstantial evidence permitting the trier of fact to draw an inference of negligence if plaintiff demonstrates that he or she was injured (1) in an occurrence that ordinarily does not happen in the absence of negligence, (2) by an agency or instrumentality within the defendant‘s exclusive control ***.” (Internal quotation marks omitted.) Id. The purpose of the doctrine “is to allow proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.” (Internal quotation marks omitted.) Id.
¶ 44 However, the Act clearly requires more than such “circumstantial evidence” of the nature of the injury to prove a municipality‘s negligence liability. The Act requires the plaintiff to prove that the municipality “ha[d] actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.”
¶ 45 The plaintiff cites no authority since passage of the Act describing its impact, if any, on the availability of res ipsa loquitur asserted against a municipal defendant. Rather, the plaintiff cites two pre-Act cases applying the doctrine to municipal defendants and contends that they are still good law, notwithstanding the Act. See Bolger, 198 Ill. App. at 127 (affirming jury verdict for plaintiff‘s
¶ 46 It is true that our supreme court has held that “The Act does not create new duties” but “merely codifies those duties existing at commоn law[ ] to which the subsequently delineated immunities apply.” (Internal quotation marks omitted.) Van Meter, 207 Ill. 2d at 368. However, whether the Act created new municipal duties does not detract from the fact that the Act imposed statutory barriers to imposing liability against a public entity. As stated by our supreme court, “The Act serves to protect local public entities and public employees from liability arising from the operation of government. [Citations.] By providing immunity, the General Assembly sought to prevent the dissipation of public funds on damage awards in tort cases. [Citation.]” (Internal quotation marks omitted.) Id. As the purpose of the Act is plainly to limit the circumstances under which a municipality may be held liable for negligence and since the notice provision in
¶ 47 We next turn to the trial court‘s order granting summary judgment with respect to the negligence claim pleaded in count I. As set forth below, we find that the plaintiff failed to offer any evidence that the City had notice of a dangerous condition, as required to establish liability under
¶ 48 The applicable summary judgment standard is well-settled. “Summary judgment is appropriate when ‘the pleadings, depositions, and admissions on file *** show that there is no issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ [Citation.] We review a ruling on summary judgment de novo.” Zameer v. City of Chicago, 2013 IL App (1st) 120198, ¶ 12. “Summary judgment is a drastic measure and should only be granted if the movant‘s right to judgment is clear and free from doubt. [Citation.] Where a reasonable person could draw divergent inferencеs from undisputed facts, summary judgment should be denied. [Citations.]” Id. ¶ 13.
¶ 49 The City‘s motion for summary judgment was premised upon
¶ 50 “Constructive notice under
¶ 51 In applying
¶ 52 Even viewing the record in this case in the light most favorable to the plaintiff, we find that there is simply no evidence whatsoever that the City had actual or constructive notice of a dangerous condition that allegedly caused the sinkhole. Because the plaintiff could not meet this requirement of the Act, summary judgment in favor of the City was appropriate.
¶ 53 On appeal, the plaintiff does not attempt to argue that there was any evidence of actual notice of a dangerous condition leading to the April 2013 sinkhole. Rather, the plaintiff asserts that there is a genuine issue of fact on the question of constructive notice. Relying solely on the deposition testimony of Dowdy and Hosty, the plaintiff on appeal asserts that the City had constructive notice of a dangerous condition, namely, the “aged and deteriorated condition of the infrastructure leading to failure and collapse of the water main and/or sewer, and thus the creation of the sinkhole.”
¶ 54 Specifically, the plaintiff cites Dowdy‘s testimony that the six-inch water main “could be” 100 years old, as well as Hosty‘s testimony that a six-inch main indicates it was installed before the 1950s. The plаintiff also cites Hosty‘s testimony that it is “not very common” to have two water main breaks at the same location within a three month period but that he has seen this occur with older sections of pipe. The plaintiff also relies on Hosty‘s testimony that a broken water main is one possible
¶ 55 The plaintiff argues that such testimony raises a genuine issue of material fact as to the City‘s constructive notice of “the aged and deteriorated condition of the infrastructure leading to failure and collapse of the water mаin and/or sewer, and thus the creation of the sinkhole.” The plaintiff argues that the testimony of Dowdy and Hosty indicate that the City “knew that the infrastructure in the area in question was aged and deteriorated.” The plaintiff‘s reply brief argues that Dowdy and Hosty‘s testimony was “not merely evidence that the infrastructure at the location of the sinkhole was old, but evidence that [the City] knew or should have known that the infrastructure at that location was deteriorated and defective and knew that an unsafe condition existed that would cause a washout or sinkhole.”
¶ 56 The plaintiff‘s argument suggests that, based on the testimony regarding the age of the pipe, an inference can be made that the City was on notice of a dangerous condition. We disagree. At most, Hosty‘s and Dowdy‘s testimony suggested that the water main was old and that a water main break is one potential cause of a sinkhole. There was simply no testimony describing the water main as “deteriorated” or suggesting that the City had notice of such deterioration. Further, there was no testimony that the age of the water main makes it per se deteriorated so as to automatically make it a dangerous condition.
¶ 57 Apparently, the plaintiff expects us to assume, without expert testimony, that old pipes constitute a dangerous condition so as to meet the constructive notice requirement. However, there is absolutely nothing in the record to support that premise as a general matter or to suggest that this particular pipe was deteriorated prior to formation of the sinkhole. Notably, the plaintiff could have, but did not, elicit testimony (including expert opinions) concerning the relationship between the water main‘s age, deterioration, and any corresponding likelihood of sinkholes. Further, even assuming that an older pipe is generally more susceptible to deterioration, there was no evidence that the City had constructive notice of the “specific defect that caused the plaintiff‘s injuries.” Zameer, 2013 IL App (1st) 120198, ¶ 16.
¶ 58 Thus, we reject the suggestion that Hosty‘s and Dowdy‘s testimony created a material issue of fact as to whether the City had constructive notice of a dangerous condition that caused the sinkhole. As the plaintiff could not meet this requirement to establish the City‘s liability under
¶ 59 Notably, the plaintiff‘s briefing also discusses
“A public entity does not have constructive notice of a condition *** within the meaning of Section 3-102(a) if it establishes either:
(1) The existence of the condition and its character of not being reasonably safe would not have been discovered by an inspection system that was reasonably adequatе ***; or
(2) The public entity maintained and operated such an inspection system with due care and did not discover the condition.”
745 ILCS 10/3-102(b) (West 2014).
The plaintiff argues that the City offered no evidence of a “reasonably adequate inspection system” to demonstrate that it lacked constructive notice pursuant to
¶ 60 That is, although
¶ 61 For the foregoing reasons, we find that the plaintiff failed to present a genuine issue of material fact as to whether the City had actual or constructive notice of a dangerous condition within the meaning of
¶ 62 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 63 Affirmed.