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Turpen v. City of St. Francisville

OPINION FILED JULY 23, 1986.

BOBBIE D. TURPEN, PLAINTIFF-APPELLANT,

v.

THE CITY OF ST. FRANCISVILLE, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE (JAMES DEISHER, THIRD-PARTY DEFENDANT).



Appeal from the Circuit Court of Lawrence County; the Hon. Laurence L. Arnold, Judge, presiding.

JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Plaintiff, Bobbie D. Turpen, brought suit in the circuit court of Lawrence County against defendant, the city of St. Francisville, a municipal corporation, to recover property damages he sustained as a result of the demolition of a two-story brick building which butted directly against his property. Defendant has purchased liability insurance to compensate tort victims. (Ill. Rev. Stat. 1983, ch. 85, par. 9-103(c).) The jury found for the plaintiff and awarded him $9,500 in damages. Subsequently, the trial court granted the city's renewed motion for a directed verdict on the ground that there was no evidence that defendant authorized the actions of those responsible for the demolition. In the alternative, the trial court granted the city's motions for judgment notwithstanding the verdict and a new trial based on the same ground. Plaintiff appeals.

Plaintiff owns a lot located at 615 Main Street, St. Francisville, which was improved with a one-story building leased to Jane Burrell and utilized as a retail flower shop known as Mum's II. The Turpen building was approximately 20 feet wide by 60 feet deep. Located immediately to the west of the Turpen Building was a two-story brick building which had been purchased by James Deisher for the express purpose of demolition and salvage of saleable materials. The east wall of the Deisher building butted directly against the west wall of the Turpen building. The Deisher building was in a serious state of deterioration, and demolition thereof was essential.

In the spring of 1983, Deisher began a one-man piece-by-piece demolition of the building. Suddenly, on the evening of May 30, 1983, a partial collapse occurred. The Deisher building had slipped off its foundation, was sagging in the center, and an I-beam was protruding onto the sidewalk. The building was leaning toward the sidewalk and threatening to fall into the street. Mayor William Padgett was advised of the situation, and he contacted Alfred Banks, the city's full-time maintenance man, and instructed him to erect barricades around the Deisher building. At approximately 9 p.m. on May 30, 1983, Banks placed barricades around the Deisher building.

Early on the morning of May 31, 1983, Deisher decided that the building was too unstable and dangerous to continue his piece-by-piece demolition and that immediate demolition was necessary. Deisher went to the mayor's house and requested the assistance of Banks and the city tractor, a 33 horsepower John Deere 1020, in pulling down the building. The mayor agreed that Deisher could use the city tractor and that Banks could assist him if he were not too busy. Additionally, the mayor asked Deisher to sign a release of liability which was prepared by the mayor. The released provided: "I JOHN DEISHER RELEASE THE CITY OF ST. FRANCISVILLE ILLINOIS FROM ANY OBLIGATIONS RESULTING FROM ANY HELP OR USE OF EQUIPMENT IN THE DEMOLITION OF BUILDINGS OWNED BY ME LOCATED ON THE CORNER OF 7TH AND MAIN." The release was signed and dated by Deisher. The date on the release was "5-30-83." Additionally, Deisher borrowed a cable that was the personal property of the mayor.

Deisher then located Banks, informed him of his discussion with the mayor and the fact that he had signed a release, and requested Banks' assistance. Banks agreed to assist Deisher so long as he did not have to attach the cable to the building or approach too close to the building. Banks accompanied Deisher to Main Street where Deisher attached one end of the cable to the center support of the building and the other end to the tractor. Banks drove the tractor. After several unsuccessful attempts to dislodge the center support, Banks moved the tractor and began to pull from a different direction. After three or four attempts, the center support came out and the building collapsed. The east wall of the two-story Deisher building crashed through the roof of the Turpen building causing extensive damage. The city has since sought the demolition of the Turpen building pursuant to the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 11-31-1).

Although plaintiff's complaint premised the city's liability on the negligent performance of its ministerial duty to protect the health and safety of citizens by demolishing unsafe buildings pursuant to section 11-31-1 of the Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 11-31-1), it alleged that the mayor and a city employee negligently performed a duty within the scope of their respective authorities, and these allegations are sufficient to state a cause of action in common law negligence. The city argued that plaintiff had no cause of action because the city had taken no action pursuant to section 11-31-1. Additionally, the city argued that plaintiff could not rely on principles of common law tort liability because such liability was expressly limited by section 11-31-1 and section 1-4-7 (Ill. Rev. Stat. 1983, ch. 24, pars. 11-31-1, 1-4-7).

At the close of plaintiff's case, the city moved for a directed verdict on the ground that plaintiff had failed to prove that the city undertook the demolition of the Deisher building pursuant to section 11-31-1 of the Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 11-31-1) and was thus precluded from recovery under section 1-4-7 of the Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 1-4-7.) The city argued that there could be no cause of action against it because the city council had not authorized the demolition of the Deisher building. The trial court denied the motion and proceeded to hear evidence. At the close of all the evidence, the city renewed its motion for a directed verdict on the same ground. The trial court reserved ruling on the motion and submitted the case to the jury which returned a verdict for plaintiff and awarded him $9,500 in damages.

In a post-trial motion, the city again renewed its motion for directed verdict, and in the alternative, moved for judgment notwithstanding the verdict, and, in the second alternative, moved for a new trial. All motions were based on the ground that plaintiff had failed to prove that the city had authorized the demolition of the Deisher building. The trial court granted the city's motion for directed verdict and its alternative motions for judgment notwithstanding the verdict and for a new trial on the ground that there was "no evidence that City of St. Francisville did any of the things charged in the Complaint, because there was no proper action by the City Council authorizing same; also, the necessary requirements of Illinois Revised Statute, Chapter 24, Section 1-4-7, have not been fulfilled to permit recovery for damages to property in this case."

The sole issue presented for review is whether the trial court properly held as a matter of law that because the city council never authorized the demolition of the Deisher building, the acts of the mayor and the city maintenance man were ultra vires and the city is not liable for plaintiff's damages.

On appeal, the primary argument advanced by the city is that the acts of the mayor and the city's maintenance man were ultra vires because the city council had not first authorized demolition of the Deisher building. Relying on sections 11-31-1 and 1-4-7, the city maintains that its liability is limited to those situations where the city council specifically authorized the demolition of a building.

• 1 Section 11-31-1 is a codification of the authority of a municipality as an arm of the State in the proper exercise of its police power (City of Chicago v. Garrett (1985), 136 Ill. App.3d 529, 535, 483 N.E.2d 409, 413) and provides the municipality with a mechanism to demolish a building that is dangerous or unsafe at the expense of the property owner. If the property owner fails to "put such building in a safe condition or to demolish it" after proper notice, the municipality may apply to the circuit court for an order allowing the city to demolish the building and the costs thereof become a lien on the real estate "which * * * is superior to all prior existing liens and encumbrances, except taxes." (Ill. Rev. Stat. 1983, ch. 24, par. 11-31-1.) The purpose of section 11-31-1 is to "prove municipalities the power to abate public nuisances which may prove detrimental to public health, safety and welfare." City of Peru v. Bernardi (1980), 81 Ill. App.3d 227, 231, 401 N.E.2d 1, 3.

Section 11-31-1 does not limit the municipality's common law authority to abate a nuisance (City of Chicago v. Nielsen (1976), 38 Ill. App.3d 941, 945, 349 N.E.2d 532, 538), or the municipality's authority to take appropriate emergency measures when a dilapidated building poses an imminent danger to public health, safety and welfare. (City of Chicago v. Garrett (1985), 136 Ill. App.3d 529, 535, 483 N.E.2d 409, 414.) "When an imminent danger to the safety of the public is posed by a structurally unsafe building, for whatever reason, the imposition of a notice requirement, a waiting period requirement, and then a requirement of applying to the circuit court for an authorization order, would have the effect of vitiating the essence of the city's inherent authority to protect the health and safety of its citizens. Every moment's delay in the removal of the danger exposes the populace to danger." (City of Chicago v. Garrett (1985), 136 Ill. App.3d 529, 536, 483 N.E.2d 409, 414.) While both Nielsen and Garrett concern the city of Chicago, which is a home rule unit, the nature of the section 11-31-1 powers of the city of St. Francisville are identical.

• 2 Moreover, apart from any statutory provisions which might create additional remedies, plaintiff is entitled to rely on basic common law principles of liability. A city, like any other corporate entity, is vicariously liable for the torts of its officers and employees "unless a valid statute dealing with tort immunity imposes conditions upon that liability." (LaMonte v. City of Belleville (1976), 41 Ill. App.3d 697, 705, 355 N.E.2d 70, 78.) As noted earlier, ...


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