The opinion of the court was delivered by: Justice Cerda
Appeal from the Circuit Court of Cook County. Honorable Donald J. O'Brien, Judge Presiding.
This action was brought by plaintiffs, Samantha Wrobel and Kim Borias, to recover damages for personal injuries sustained as result of an automobile accident occurring on a state highway maintained by defendant, the City of Chicago. The accident in question was allegedly caused when a third-party, who is not a party to this appeal, lost control of his vehicle after striking a pothole in the roadway, and the vehicle veered into oncoming traffic in which plaintiffs were traveling. Plaintiffs appeal the order of the circuit court entering summary judgment in favor of the City on the ground that it was immunized from liability pursuant to the Local Government and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/2-201 (West 1998). For the following reasons, we affirm.
Plaintiffs were injured on January 14, 1997, when the vehicle that Wrobel was operating and in which Borias was a passenger collided with a vehicle being operated by Joseph Bosh on the 7300 block of South Kedzie Avenue in the Chicago. Immediately before the accident, plaintiffs were traveling south on Kedzie, while Bosh was traveling north. Bosh claimed the accident occurred when his vehicle careened out of control into oncoming traffic after striking a pothole in the road. Bosh did not see the pothole in question before the crash, but upon returning to the immediate area of the accident at some later unspecified date, he observed a four-foot by six-foot depression in the road, which had been patched over. Bosh identified this depression to be the pothole that caused his vehicle to veer out of control.
The 7300 block of South Kedzie is a state highway owned by the State of Illinois. Pursuant to a formal agreement with the State, the City receives state funds to perform maintenance work, including pothole repair, on the area of Kedzie involved in this case, as well as numerous other stretches of state highways within its limits. The record materials show that City workers had repaired potholes in the 7300 block of South Kedzie on January 10, 1997, four days before the accident. City worksheets reveal that the crew conducting repairs on January 10 was headed by foreman Michael Colianne.
During the winter months, crews are deployed by the City to canvass roadways under the City's maintenance and fill potholes in need of repair. These crews generally consist of a foreman, a raker, a roller, and two laborers. A supervisor with the asphalt division of the City's Department of Transportation coordinates the crew foremen and specifies the roadway areas where each crew will conduct pothole repairs. Each foreman then plans the route the crew will undertake through the daily grid and supervises the crew members during their work. The foreman is typically not involved in the physical work involved in repairing any pothole.
The particular asphalt mixture used by the City to repair potholes depends on the time of the year during which the repair efforts are undertaken. In warmer weather, the City fills potholes with a "hot mix." As was explained by various City workers, a hot mixture forms a durable and a relatively long lasting patch. In colder weather, however, the City uses a "cold mix", which is not as durable and dependable as a hot mixture. Depending on a number of various extraneous factors occurring after its application, such as the weather, traffic patterns and frequency of plowing, a cold mix patch may fail quite rapidly. The record testimony of several foremen and crew workers demonstrates that the City elects to utilize a cold mixture instead of a hot mix in winter weather because a hot mixture will typically settle during transportation due to the low temperatures and, as a consequence, are generally unusable. Due to this situation, the City employs cold mixtures in the winter as a temporary fix, and then later uses the more durable hot mix when the weather permits.
The manner in which the cold mixture is applied in winter differs among the various repair crews. In particular part, the crews do not follow any uniform approach of handling asphalt debris and water within a pothole to be repaired. Some crews make no attempt to remove loose asphalt and moisture, particularly water, from a pothole before a cold mixture is applied, while other crews undertake such efforts. For instance, Michael Colianne stated the workers under his supervision specifically attempt to remove residual asphalt, snow, ice, and water from a pothole "as much as possible" before applying a cold mixture. Colianne explained the presence of loose asphalt and moisture will adversely affect the adhesive quality of the patch, and stated that such removal efforts are necessary to ensure a durable repair.
The affidavit of Boris Dragunsky, a licensed engineer with a doctorate degree in construction materials technology, was submitted by plaintiffs to show that Colianne's practice is the proper method of pothole repair. According to Dragunsky, substrate preparation is essential for effective pothole repair. Dragunsky explains that the presence of moisture or water in the substrate will insure the rapid failure of any repair, and that the mixing of old asphalt aggregate with a cold mix will similarly contribute to a rapid deterioration of the patch. Dragunsky maintains that effective repair of a pothole with use of a cold mix requires removal of all moisture, water and residual asphalt aggregate from the pothole.
Plaintiffs' theory of negligence against the City is not entirely clear. Plaintiffs assert that in light of the City's documented repair efforts, no open and unrepaired potholes, especially one measuring four- by-six feet, presumably existed in the 7300 block of South Kedzie at the conclusion of the work day on January 10, 1997. Plaintiffs maintain the pothole purportedly struck by Bosh on January 14, 1997, must then have developed within the four-day period preceding the accident. Plaintiffs claim that "the rapid appearance of the condition gives rise to an inference that a prior repair failed rapidly" and "that, in turn, gives rise to an inference that the repairs were done improperly." According to plaintiffs, the improper repair by the workers ensured the rapid failure of the patch, and consequently caused the dangerous condition confronted by Bosh. *fn1
We glean from plaintiffs' assertions two distinct theories of liability. First, plaintiffs seem to claim that the laborers working under Colianne's supervision on January 10, 1997 failed to remove an adequate amount of residual asphalt and moisture from the pothole that was struck by Bosh before applying the cold mix compound. In an apparent alternative theory, plaintiffs seem to contend that the same workers wholly failed in the first instance to follow the application procedure prescribed by Colianne and made no attempt to remove any loose asphalt or moisture.
The purpose of summary judgment under section 2-1005 of the Code is to determine whether there exist any genuine issues of material fact between the parties. Hubble v. O'Connor, 291 Ill. App. 3d 974, 979, 684 N.E.2d 816, 820 (1997). Summary judgment is appropriate only where the pleadings, depositions, and admissions on file, together with any affidavits, present no issue of material fact and show that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1998); Benamon v. Soo Line Railroad Company, 294 Ill. App. 3d 85, 87, 689 N.E.2d 366, 369 (1997). Our review of an order granting summary judgment in favor of a party is conducted de novo (Benamon, 294 Ill. App. 3d at 88, 689 N.E.2d at 369 (1997)), and we will construe all pleadings, depositions and affidavits in a light most favorable to the nonmoving party. Soderlund Brothers, Inc. v. Carrier Corp., 278 Ill. App. 3d 606, 614, 663 N.E.2d 1, 7 (1995).
In its motion for summary judgment, the City argues, in relevant part, it is immune from the asserted negligence of its workers under sections 2-201 of the Act. That provision provides:
"[e]xcept as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." 745 ILCS 10/2-201 (West 1998).
By virtue of section 2-109 of the Act, immunity is granted to a public entity for the acts or omissions of its employees where the employees are not ...