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05/18/95 DEVRA WAGNER v. CITY CHICAGO

May 18, 1995

DEVRA WAGNER, PLENARY GUARDIAN OF ESTATE OF TROY WAGNER, A DISABLED PERSON, APPELLEE,
v.
THE CITY OF CHICAGO, APPELLANT.



The Honorable Justice Nickels delivered the opinion of the court.

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

Defendant, the City of Chicago, appeals from a verdict for the plaintiff, Devra Wagner, plenary guardian of the estate of Troy Wagner, and against the city. Plaintiff brought suit in the circuit court of Cook County against the city for injuries suffered in an accident on the city's street. The city appealed, claiming, inter alia, that section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1985, ch. 85, par. 3-102(a)) precluded any liability on its part. The appellate court affirmed (254 Ill. App. 3d 842), and we granted the city's petition for leave to appeal (145 Ill. 2d R. 315). We affirm.

Plaintiff was severely injured on July 24, 1985, when his motorcycle collided with a vehicle driven by Paul Roszkowski at the intersection of Ashland and Rosehill Streets in Chicago. Roszkowski had turned left from Clark onto Rosehill and was proceeding through the intersection at the time of the collision.

Plaintiff brought suit against both Roszkowski and the city, and later, settled with Roszkowski. The suit against the city went to trial and the jury found the city negligent in failing to post a "no left turn" sign on the left side of Clark where Roszkowski had turned onto Rosehill. However, the jury apportioned 50% of the fault to plaintiff. Thus, damages were reduced 50% to approximately $2,155,000. The city appealed and the appellate court affirmed. After allowing the city's petition for leave to appeal, we allowed the Illinois Municipal League and Cook County to file briefs as amici curiae.

On appeal, the city argues that section 3-102(a) of the Act precludes any imposition of liability in this case. Section 3-102(a) 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 ***." (Ill. Rev. Stat. 1985, ch. 85, par. 3-102(a).)

The city argues that there can be no liability without a duty (see Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 421, 170 Ill. Dec. 418, 592 N.E.2d 1098), and that it owed no duty to plaintiff to maintain its property in a reasonably safe condition. Specifically, the city argues it owed no duty to plaintiff under section 3-102(a) because: (1) plaintiff did not use ordinary care; and (2) plaintiff was not an intended and permitted user of the street. In arguing this, the city asserts that the legislature's intent in enacting section 3-102(a) was to make the defense of contributory negligence applicable in suits against municipalities.

Waiver

Before we address the city's arguments, we first address plaintiff's argument that the city has waived any appeal on the issue of section 3-102(a). Plaintiff argues that the city failed to assert the defense of contributory negligence at trial and in its first post-trial motion. The issue was first raised in the city's second post-trial motion, which the trial court refused to consider. Plaintiff then argues: "It is well settled that governmental tort immunity under the Tort Immunity Act must be raised and pled as an affirmative defense or else it is waived. (Ill. Rev. Stat. 1991, ch. 110, par. 2-613)." ( Martin v. Chicago Housing Authority (1994), 264 Ill. App. 3d 1063, 1075, 201 Ill. Dec. 917, 637 N.E.2d 506.) Moreover, as a general rule, any issue not raised at the trial court level is waived. ( Fawcett v. Reinertsen (1989), 131 Ill. 2d 380, 386, 137 Ill. Dec. 613, 546 N.E.2d 558.) Plaintiff finally notes that not only did the city fail to raise this defense, it tendered an instruction for comparative negligence.

The city responds by arguing that this court may consider its appeal because: (1) while the matter was not raised in the trial court until the second post-trial motion, the appellate court decided the issue; (2) at the time of the trial, the only law on this area was the appellate court decision in Palladini v. City of East Peoria (1985), 134 Ill. App. 3d 345, 89 Ill. Dec. 345, 480 N.E.2d 530, which held that section 3-102(a) embraces comparative negligence, thus preventing the city from even raising the claim; and (3) this court may hear any waived matter, as waiver is a barrier to the parties, but not the courts.

We briefly note that plaintiff does not specifically argue that the city has waived its second argument, that it owed no duty because plaintiff was not an intended or permitted user of the street. However, the city did not even raise this issue in its petition for leave to appeal. Nonetheless, we choose to address these issues. As noted recently by this court:

"The rule of waiver is, of course, a limitation on the parties and not the courts. ( In re Marriage of Sutton (1990), 136 Ill. 2d 441, 446, 145 Ill. Dec. 890, 557 N.E.2d 869.) In the exercise of its responsibility for a just result and the maintenance of a sound and uniform body of precedent, a reviewing court may consider issues not properly preserved by the parties. ( Jackson Jordan, Inc v. Leydig, Voit & Mayer (1994), 158 Ill. 2d 240, 251, 198 Ill. Dec. 786, 633 N.E.2d 627.)" ( Geise v. Phoenix Co. of Chicago, Inc. (1994), 159 Ill. 2d 507, 514, 203 Ill. Dec. 454, 639 N.E.2d 1273.)

We find it proper to address these issues for the maintenance of a sound and ...


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