Appeal from Circuit Court of Vermilion County No. 97L79
The opinion of the court was delivered by: Presiding Justice Knecht
Honorable Thomas J. Fahey, Judge Presiding.
In February 1998, plaintiff, Irene Bernal, filed a fourth-amended complaint against defendant, City of Hoopeston (City), after falling into a water meter pit and injuring her leg, knee, hip, and back. In November 1998, the trial court granted defendant's motion for summary judgment, finding defendant immune from liability under section 3-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-102 (West 1994)). Plaintiff appeals, arguing (1) the Act does not apply where plaintiff's injuries arose from a municipality's affirmative act; (2) the trial court erred in denying plaintiff's motion to strike paragraphs from the water superintendent's affidavit; and (3) summary judgment was improper due to existing questions of fact. We reverse and remand.
According to plaintiff's affidavit, in June 1995 plaintiff and her family moved into a new residence located in Hoopeston, Illinois. Around midnight on the day she moved, plaintiff left the house and walked to her car. On her way to the car, plaintiff alleges she fell into a water meter pit. During a discovery deposition, plaintiff stated she stepped on the cover and it came off, causing her entire leg to fall into the hole, injuring her knee, hip, and back. Plaintiff further stated she went to the hospital and doctors told her she suffered a sprained knee and hip. Plaintiff also stated she received treatment for several months and still suffers pain in her hip and back. Finally, plaintiff stated she cannot kneel or squat, sit for long periods, or lift heavy objects.
Plaintiff's brother filed an affidavit stating he inspected the water meter pit's cover. He averred the cover did not appear broken. The affidavit further stated "it appeared the cover could only have come loose if it had not been properly fastened to the opening."
In February 1998, plaintiff filed a fourth-amended complaint alleging the City attached the cover in a negligent or ineffective manner. Plaintiff's complaint further alleged negligent conduct should be inferred inasmuch as the City had sole access to the type of tool necessary to remove the cover and because the cover showed no evidence of damage due to forcible removal or loosening.
In September 1998, defendant filed a motion for summary judgment. In support of its motion, defendant submitted an affidavit from the City's water superintendent, Stephen Baker. In paragraph 9, the affidavit stated City employees properly fastened the cover after taking the most recent meter reading. In paragraph 11, the affidavit stated the City received no notice of the cover's alleged dangerous condition.
In October 1998, plaintiff moved to strike paragraphs 9 and 11 from Baker's affidavit. Plaintiff argued the affidavit provided no foundational basis for paragraph 9, making it conclusory in nature. Plaintiff supported this contention by arguing the affidavit failed to "state whether [Baker] personally replaced the cover or was present and watched the cover being replaced." Also, plaintiff argued paragraph 11 should have been stricken because plaintiff based her claim on affirmative negligence rather than failure to maintain, thereby making notice unnecessary and making paragraph 11 irrelevant.
In November 1998, the trial court denied plaintiff's motion to strike, finding plaintiff's arguments relevant to the weight of Baker's affidavit, but not to its admissibility. Also in November 1998, the trial court granted defendant's motion for summary judgment, finding "[n]either actual [n]or constructive notice through the affidavits." The trial court further held plaintiff's "argument that some act done by the City created its own notice *** is [not] nor should [it] be the law." Plaintiff filed the instant appeal. II. ANALYSIS The trial court found the city received no notice of the defect and granted defendant's motion for summary judgment based upon section 3-102(a) of the Act (745 ILCS 10/3-102(a) (West 1994)), which states in relevant part:
"[A] local public entity has the duty to exercise ordinary care to maintain its property *** 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." Relying on Harding v. City of Highland Park, 228 Ill. App. 3d 561, 571, 591 N.E.2d 952, 959 (1992), plaintiff argues the Act does not apply to situations where the municipality created the dangerous situation.
In Harding, plaintiff injured herself after falling into a water meter pit. The second district held "when an affirmative act of a municipality's agents or employees causes a dangerous condition, no actual or constructive notice of said condition is required." Harding, 228 Ill. App. 3d at 571, 591 N.E.2d at 959. The court further recognized "evidence [existed suggesting the city created] the dangerous condition of the meter pit *** and *** these facts provided actual or constructive notice to the defendant; hence, the protection from municipal liability provided by section 3-102(a) did not apply." Harding, 228 Ill. App. 3d at 571, 591 N.E.2d at 959. Finally, the court acknowledged the existence of cases where plaintiffs failed to establish notice, such as Bellino v. Village of Lake in the Hills, 166 Ill. App. 3d 702, 520 N.E.2d 1196 (1988), and Palermo v. City of Chicago Heights 2 Ill. App. 3d 1004, 276 N.E.2d 470 (1971). However, the court distinguished Palermo and Bellino, finding neither case squarely addressed the effect on the notice requirement where the municipality negligently and affirmatively created the dangerous condition.
Defendant cites Palermo and argues it had no notice of the alleged defect, and therefore the trial court correctly granted its motion for summary judgment under the Act. In Palermo, plaintiff "'stepped on a [water meter] lid and it tilted and *** flipped over,'" causing plaintiff's leg to fall into the hole. Palermo, 2 Ill. App. 3d at 1006, 276 N.E.2d at 471. The court found defendant had no actual or constructive notice of the defective cover because it existed for only a few weeks and was not plainly visible. Palermo, 2 Ill. App. 3d at 1009, 276 N.E.2d at 473. Defendant also cites Pinto v. DeMunnick, 168 Ill. App. 3d 771, 523 N.E.2d 47 (1988). There, plaintiff fell into a sinkhole on a parkway. Citing Palermo, the first district found plaintiff failed to show actual or constructive notice of an unsafe condition. Pinto, 168 Ill. App. 3d at 774-75, 523 N.E.2d at 50.
As plaintiff contends in the instant case, the problem with Palermo and Pinto is that they focus on whether defendants received notice. They do not directly address the issue on appeal, namely the effect on the notice requirement where the municipality affirmatively creates the dangerous condition. See Harding, 228 Ill. ...