Appeal from the Circuit Court of Cook County Honorable Mary Mulhern, Judge Presiding.
The opinion of the court was delivered by: Justice Karnezis
Marilyn Hanley appeals from an order of the trial court granting summary judgment to defendant, the City of Chicago, in her personal injury action and from the court's denial of her motion to reconsider the court's order. The court found defendant immune from civil liability pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 1998)) (the Tort Immunity Act) for injuries plaintiff sustained when she tripped in a pothole and fell. On appeal, plaintiff argues that the court erred in granting summary judgment to defendant because (1) the court erroneously barred plaintiff's expert from testifying at trial and disregarded the expert's affidavit submitted with plaintiff's response to defendant's motion for summary judgment and (2) defendant was not immune from liability. We reverse and remand.
On January 8, 1996, plaintiff was injured when she tripped and fell in a pothole within a crosswalk at the intersection of Michigan Avenue and Ontario Street in Chicago. Plaintiff filed a complaint against defendant alleging that defendant's negligence in maintaining the crosswalk and its failure to repair the pothole and warn of the danger it presented caused her injuries. Defendant answered, denying the claims and raising as an affirmative defense that it was immune from liability pursuant to section 3-102 of the Tort Immunity Act because its property was in a reasonably safe condition for its intended purpose when the accident occurred, defendant had no actual or constructive notice that the condition of its property was not reasonably safe, and plaintiff failed to exercise ordinary care in crossing the street. Defendant also argued that plaintiff's own negligence proximately caused her injury and, in the event that defendant was found negligent, any judgment against defendant should be reduced comparatively.
On May 1, 2000, 45 days prior to trial, defendant brought a motion for summary judgment arguing that it was immune from liability (1) pursuant to section 2-201 of the Tort Immunity Act because decisions whether to inspect or repair a street are purely discretionary; (2) pursuant to section 3-102(a) because no evidence was produced during discovery that defendant had actual or constructive notice of the pothole; and (3) pursuant to section 3-104 because it has no liability arising from a failure to warn. In response, plaintiff argued that the cited provisions of the immunity statute do not apply because (1) defendant created the defect when it inadequately repaired the pothole; (2) there is no immunity for repairing a pothole, which is a ministerial rather than a discretionary act; (3) defendant had notice of the pothole; and (4) section 3-104 only refers to traffic control warning devices affecting motor vehicles, not, as here, affecting pedestrians. Plaintiff attached numerous exhibits to her response, including the affidavit and report of Douglas Bynum, Ph.D., P.E.
Dr. Bynum, an engineer, opined that the pothole had been patched at some point but that the repair had not been done "in the appropriate manner" or using appropriate materials. He stated that the patched pothole should have been gouged out completely and larger than the pothole itself before being filled with asphalt. He concluded that the overall depth of the pothole was 2 5/16 inches below grade and that the depth was sufficient to cause most people to lose their balance, especially at night. He also stated that plaintiff crossed the street in a prudent manner and that defendant had notice of the "dangerous and unsafe condition at the scene of the accident." Dr. Bynum was not disclosed as an expert witness prior to trial pursuant to Supreme Court Rule 213 (177 Ill. 2d R. 213) and the trial court barred him from testifying at trial.
Defendant filed a reply in support of its motion for summary judgment, moving to strike Dr. Bynum's affidavit and report for introducing new facts, conclusions and opinions in violation of Supreme Court Rule 213. Defendant also argued that the report and affidavit raised new allegations of improper repair that were "never before plead[ed]" and thus barred by the statute of limitations.
Subsequently, the court *fn1 granted defendant's motion for summary judgment, finding that defendant was immune from liability because repair of the pothole was a discretionary act on defendant's part and there was no evidence that the pothole had been filled in a manner other than correctly prior to plaintiff's fall or that defendant had notice of the defective pothole. Because Dr. Bynum was barred from testifying at trial, the court did not consider Dr. Bynum's affidavit and report in making its determination, noting that only evidence admissible at trial may be considered in ruling on a motion for summary judgment. The court stated that it would not address the issue of whether defendant properly repaired the pothole before plaintiff fell because this issue was not before the court. The court denied plaintiff's motion to reconsider and plaintiff timely filed her notice of appeal.
A drastic means of disposing of litigation, a motion for summary judgment is granted only when the pleadings, depositions, and admissions on file, together with any affidavits, construed strictly against the movant and liberally in favor of the opponent of the motion, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Purtill v. Hess, 111 Ill. 2d 229, 240-41, 489 N.E.2d 867, 871 (1986). We review the trial court's entry of summary judgment de novo. Axen v. Ockerlund Construction Co., 281 Ill. App. 3d 224, 229, 666 N.E.2d 693, 696 (1996). Waiver of Affirmative Defense
The trial court granted summary judgment to defendant because it found defendant immune from civil liability pursuant to section 2-201 of the Tort Immunity Act, which provides for immunity for discretionary acts. 745 ILCS 10/2-201 (West 1998). Defendant did not raise the section 2-201 discretionary immunity defense in its answer to plaintiff's complaint. Generally, in order to avoid surprise to the opposite party, an affirmative defense must be set out completely in a party's answer to a complaint and failure to do so results in waiver of the defense. 735 ILCS 5/2-613(d) (West 1998); Horwitz v. Bankers Life & Casualty Co., 319 Ill. App. 3d 390, 399, 745 N.E.2d 591, 598 (2001); Rognant v. Palacios, 224 Ill. App. 3d 418, 422, 586 N.E.2d 686, 688 (1991). However, courts have held that an affirmative defense may be raised, as defendant did in this case, in a motion for summary judgment even though the defense was not raised in an answer. Horwitz, 319 Ill. App. 3d at 399, 745 N.E.2d at 598; Holladay v. Boyd, 285 Ill. App. 3d 1006, 1011, 675 N.E.2d 262, 266 (1996); Salazar v. State Farm Mutual Automobile Insurance Co., 191 Ill. App. 3d 871, 876, 548 N.E.2d 382, 385 (1989); Strzelczyk v. State Farm Mutual Automobile Insurance Co., 138 Ill. App. 3d 346, 349, 485 N.E.2d 1230, 1232 (1985). We review the trial court's decision to allow defendant to raise its discretionary immunity defense for the first time in its motion for summary judgment for abuse of discretion. Horwitz, 319 Ill. App. 3d at 399, 745 N.E.2d at 599.
It appears from the record that plaintiff did not object to defendant's raising this affirmative defense until she filed her motion to reconsider the grant of summary judgment, and then only in the context of her use of Dr. Bynum's affidavit to counter the defense. Accordingly, by her failure to object, plaintiff forfeited consideration of whether defendant waived its section 2-201 affirmative defense. Hill v. Chicago Housing Authority, 233 Ill. App. 3d 923, 933, 599 N.E.2d 1118, 1124-25 (1992). Moreover, a determination that an affirmative defense has been waived is especially inappropriate where, as here, the party asserting that the defense has been waived had ample time to respond to the defense and, as a result, was not unfairly prejudiced by the failure to raise it in the answer. Horwitz, 319 Ill. App. 3d at 399, 745 N.E.2d at 598. Although plaintiff may have been surprised by the discretionary immunity defense, she had 45 days prior to trial in which to respond to the motion for summary judgment. In addition, the court granted plaintiff two extensions in which to file her response and ultimately allowed plaintiff to file her response instanter on July 13, 2000. We note that the court also rescheduled the trial date twice at plaintiff's request, from June 14, 2000, to July 20, 2000, to September 13, 2000. Plaintiff had more than ample time in which to respond to the motion and did so. We find that she was, therefore, not prejudiced by defendant's failure to raise its section 2-201 discretionary immunity defense in its answer, defendant did not waive that defense and the court did not abuse its discretion in considering it. Fairness
In its motion for summary judgment, defendant argued that section 2-201 applies to its actions in deciding to inspect or repair a street and that it is immune from liability for any alleged negligence in making those discretionary determinations. In response, plaintiff argued that repair of the pothole was a ministerial act for which defendant does not have immunity because defendant created the defect by inadequately repairing the pothole, as shown by Dr. Bynum's affidavit. The court found ...