Krivokuca v. City of Chi.

2017 IL App (1st) 152397

73 N.E.3d 525

Mirko KRIVOKUCA, Plaintiff-Appellant,

v.The CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellee.

No. 1-15-2397

Appellate Court of Illinois, First District.

FEBRUARY 17, 2017

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

JUSTICE CUNNINGHAM delivered the judgment of the court, with 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, causing the entire car to fall into the sinkhole." At his deposition, the plaintiff testified that the ground suddenly opened up and the back of his vehicle sank several feet below the ground. The plaintiff called 911, and was transported by ambulance to a hospital, where he was treated for various injuries. His vehicle was later removed from the sinkhole and impounded by the City. The plaintiff claims that his vehicle was later destroyed by the City without providing him notice.

¶ 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 and "[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." 735 ILCS 5/2-619(a)(9) (West 2012). The City asserted that the res ipsa loquitur count could not be maintained in light of section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Act), which provides:

"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 section 3-102(a) of the Act to his lawsuit, but argued that it did not bar a res ipsa loquitur claim because the Act "did not impose any new duties or rights that were not available under the common law." The plaintiff cited two decisions (both decided before passage of the Act) which applied the res ipsa loquitur doctrine against a municipal defendant. See Roberts v. City of Sterling , 22 Ill.App.2d 337, 161 N.E.2d 138 (1959) ; Bolger v. City of Chicago , 198 Ill.App. 123 (1916).¹ The plaintiff acknowledged that these decisions predated the Act, but nevertheless maintained they supported "the liability of municipalities based on res ipsa loquitur * * * since section 3-102(a) did not change the common law rules relating to the right and liabilities of municipalities concerning their real property." The plaintiff claimed that res ipsa loquitur applied in this case because the City had "complete control" and knowledge of the conditions of the street and underground structures at the sinkhole site, and also asserted that the City had "actual notice or constructive notice of such facts and circumstances as would, by the exercise of reasonable diligence, lead a prudent person to the knowledge that a dangerous condition existed."

¶ 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 section 3-102(a) of the Act that the street and underground structures at the the site of plaintiff's alleged injury were "reasonably safe," and that it lacked either actual or constructive notice of an unreasonably dangerous condition, as required to impose liability under section 3-102(a).

¶ 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 6-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 6-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 resolved by the clamp and that such a repair "will last forever." Dowdy did not return to the site after the January 2013 repair.

¶ 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. 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 6-inch diameter main. He agreed that the 6-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...