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Denise Ponto v. Dale Levan

June 27, 2012

DENISE PONTO,
PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
DALE LEVAN, DEFENDANT AND THIRD-PARTY PLAINTIFF- APPELLANT AND CROSS-APPELLEE (THE CITY OF DIXON, THIRD-PARTY DEFENDANT ) -APPELLEE AND CROSS-APPELLANT). )



Appeal from the Circuit Court of Lee County. No. 08-L-9 Honorable Daniel A. Fish,Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Jorgensen

PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.

OPINION

¶ 1 Following an automobile accident, plaintiff, Denise Ponto, sued defendant and third-party plaintiff, Dale Levan, alleging negligence, including that Levan drove while intoxicated. Levan filed a counterclaim for contribution against third-party defendant, the City of Dixon (City), alleging that the City's negligent maintenance of its water mains created an ice patch that caused Levan's automobile to skid into Ponto's vehicle. Levan admitted liability, and a jury found in Ponto's favor, awarding her $585,174.23 in damages and finding Levan 65% at fault and the City 35% at fault. The trial court entered judgment on the verdict and found that Levan was not entitled to contribution unless he paid more than his pro rata share of the damages. Ponto and Levan separately appeal, and the City cross-appeals.

¶ 2 Generally, Ponto and Levan argue that Ponto should be allowed to collect the balance of her verdict against Levan from the City, and, in its cross-appeal, the City argues that it should have been allowed to assert the affirmative defense of discretionary immunity. The parties specifically ask us to determine whether: (1) under section 2-406 of the Code of Civil Procedure (Code) (735 ILCS 5/2-406 (West 2008)), the trial court erred in denying Ponto leave to amend her complaint to add the City as a direct defendant more than twoyears after she commenced her suit against Levan, when the third-party action against the City had been commenced within the one-year statute of limitations contained in the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/8-101 (West 2008)); (2) a third-party defendant who is more than 25% at fault may be jointly and severally liable to the plaintiff under section 2-1117 of the Code (735 ILCS 5/2-1117 (West 2008)); (3) the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 2008)) permits a third-party defendant to be shielded from judgment unless and until a third-party plaintiff has paid more than his pro rata share of the judgment; and (4) the trial court improperly precluded the City from asserting immunity for the alleged discretionary acts of its employees. For the following reasons, we affirm.

¶ 3 I. BACKGROUND

¶ 4 On February 2, 2008, at about 2:30 a.m., Ponto was driving south on River Road (Illinois Route 2) in Dixon. Levan was driving his truck north. Levan's truck slid into the southbound lanes of traffic and collided with Ponto's vehicle. Ponto sustained injuries. Levan was not injured, but he was subsequently charged with operating his vehicle while intoxicated.

¶ 5 On February 29, 2008, Ponto sued Levan,*fn1 alleging negligence and willful and wanton misconduct. Levan denied the allegations. On February 26, 2009, Levan filed a third-party complaint against the City, seeking contribution under the Contribution Act. Levan claimed that, as he was driving downhill, around a curve, and onto River Road from the south, he encountered a patch of ice created by a leaking municipal water main under the road. He argued that the City failed to maintain the streets in a reasonably safe condition and that the City had constructive notice of the particular defect-a leaking water main near 920 East River Road, near the accident site-because of prior leaks under the road, some in close proximity to the February 2, 2008, leak. Levan also argued that the road's condition was unreasonably dangerous and that prior water main leaks in the area put the City on notice that additional leaks could occur.

¶ 6 On June 16, 2009, the City moved to dismiss (735 ILCS 5/2-619(a)(9) (West 2008)), arguing first that it had no notice of the water main break until after the collision and, second, that discretionary immunity under section 2-201 of the Tort Immunity Act applied because it had approved a plan (i.e., an alleged discretionary act) to replace the water main at this location.

¶ 7 On November 13, 2009, the trial court denied the City's motion, finding that the questions whether the City lacked notice and whether the City's water department superintendent was exercising discretion constituted factual questions for the jury.

¶ 8 On June 15, 2010, Ponto moved for leave to file a second amended complaint to add the City as a defendant, seeking to argue that the City's negligent maintenance of its water mains resulted in an icy patch that caused the accident. She maintained that no prejudice would result, because the allegations in her complaint were identical to those in Levan's third-party complaint. In response, the City raised the Tort Immunity Act's one-year statute of limitations. The trial court, on August 23, 2010, denied Ponto's motion, finding that section 2-406 of the Code (735 ILCS 5/2-406 (West 2008)), which permits the addition of third-party defendants, does not state that the statute of limitations is tolled for purposes of adding as a co-defendant to a plaintiff's claim a third-party defendant.

¶ 9 Prior to trial, Levan filed an amended answer to Ponto's complaint, admitting liability. A jury trial commenced on November 15, 2010. Because some of the testimony relates to the third issue on appeal (i.e., application of the Tort Immunity Act), we briefly summarize it.

¶ 10 Levan testified that he was intoxicated on the day of the collision and that he was at least partly at fault for the accident. Several witnesses testified that on the roadway near the accident site there was water and ice that came from a water main break. It was undisputed that there was a leak in the water main under Route 2 near the location where Ravine Avenue and East River Street meet and become River Road/Route 2. The accident occurred near 920 East River Road. Water from the leak was percolating through the road surface, causing a freezing puddle about 10 feet across. Ponto's theory as to the City was that the municipality should have replaced the entire water main pipe (i.e., the River Street and River Road portions) near the collision site.

¶ 11 Willard "Rusty" Cox, the City's water department superintendent, testified that he oversees the City's water distribution system under the supervision of the director of public works, Shawn Ortgiesen. Cox explained that he has a choice in how he maintains the City's water distribution system and considers competing interests such as cost, public safety, and public convenience. Between 2006 and 2008, there had been nine water main breaks in the area (from 400 East River Street to 920 East River Road), including one on October 26, 2007, that was 8 to 12 feet from the break that occurred at 920 East River Road on the day of the collision. The City did not have in place any inspection system.

¶ 12 Cox further testified that the River Street and River Road projects were two discrete projects. Based on the number of breaks, the City determined that the River Street water line was faulty. On December 3, 2007, the City entered into an engineering agreement to replace the pipe (only) on River Street (from Bunny's Bait Shop to Crawford Avenue). (Before entering into the agreement, no study was performed for either the River Street or the River Road project.) A new pumping station near the collision site came on line in 2006. There were no recurring leaks in the area prior to the new station. In March 2008, the River Street portion of the pipe (between Bunny's Bait Shop and Artesian Avenue) was shut down, but the River Road portion was not shut down. The project was not urgent after the main was shut off. The 2,000-foot River Street project ultimately took 18 months to complete instead of 5 months because it was not urgent, Environmental Protection Agency approval was not immediate, and there were issues with certain easements along a railroad right of way.

¶ 13 The River Road project was not included in the December 3, 2007, agreement, because Cox did not believe there was an issue with the main there; he "didn't think we had a problem," because there were no red flags before February 2008. The February 2, 2008, leak near 920 East River Road occurred about 250 feet east of Bunny's Bait Shop. Cox suspected that a water hammer following a nearby fire caused an October 2007 leak on River Road. Cox did not determine that the water main was faulty. It was not until Ponto's accident that it occurred to Cox that there might be recurring issues with the River Road main; thus, he started taking action later that year. In Cox's view, it takes four or five breaks before a call for an evaluation is made to an engineering firm. At the time of Ponto's accident, Cox did not believe that there was a "big enough problem" such that the River Road main required replacement. He and Ortgiesen decided in March or April 2008 that they needed to start budgeting for that River Road pipe's replacement. They also started the process of obtaining an engineering agreement. The second engineering agreement (i.e., for the River Road project) was executed on November 3, 2008. That project was completed in just over one year and cost $160,000. (The department's 2008 budget was $1.8 million.)

¶ 14 Before the collision, Cox knew that the River Street pipe was in bad shape. Cox further testified that he started becoming concerned about the River Road pipe in March 2008. However, he testified at his deposition that he became concerned about the series of leaks in September 2008. At trial, he explained that he became very concerned in September 2008, but had been concerned earlier that year. Cox testified that, had he conducted inspections in 2006 and 2007 and discovered that the River Road water main was in bad shape, he would have recommended to the City to have it replaced.

¶ 15 David Jacobson, an engineer and engineering consultant, testified as Levan's expert witness. He opined that the City knew or should have known that the water main under River Road/Route 2, as well as that under East River Street, should have been replaced and that it should have commissioned a study earlier than it did. The pipe was over 100 years old and made of cast iron, which made it susceptible to corrosion from salt applied to the road above it. These factors, plus the fact that the pipe had a few breaks in a confined area, were warning signs that more breaks would occur. The specific underlying causes of the breaks were the pipe's age and corrosion. After the third water main break, the City should have commissioned a study of the pipe; testing would have cost about $5,000 for a quarter-mile of pipe (and taken about a week) and a few thousand dollars more for a consultant's review. If the pipe (up to a 3/4 -mile length) needed to be replaced, the process would have taken about five months. Jacobson noted that the City did not ultimately commission a study, but entered into two agreements to replace the pipe (December 2007 for the River Street portion within the City limits and November 2008 for the out-of-town section/River Road portion). The first project cost between $90,000 and $100,000. The second project cost $160,000. To the extent the City has an inspection system, it focuses on the water, not the pipes. Jacobson conceded that the primary concern in a water distribution system is the delivery of safe potable water. In March 2008, Cox and Ortgiesen decided that there was a need to budget for pipe replacement. Jacobson testified that the first time that Cox thought that the water main on River Road might need replacing was after Ponto and Levin's collision.

¶ 16 Ortgiesen, the director of the City's public works department and the City engineer, addressed the process and time for replacing the water main. He testified that, typically, the process takes about five months to complete (from the time City approval is sought for the project to the time the project is constructed, assuming weather is not a factor). In 2009, the City replaced about 2,000 feet of water main in the 400 to 800 block of East River Street (the ends were two natural termination points and the leaks had occurred within this area). There were no leaks on River Road until October 2007. The February 2008 leak was the second leak on River Road.

¶ 17 In late 2007 or early 2008, Ortgiesen and Cox first discussed the issue of the water main breaks on River Street and investigated and ultimately ruled out a new pump house as the cause. The River Street water main replacement project was completed in 18 months, not 5 months. Engineers shut off part of the section (in March 2008) that sustained breaks; it was not servicing any residents or businesses in the area, "so we were able to hold off a little bit." Projects are reviewed and are implemented based on the budget and other concerns, including need. Ortgiesen conceded that the budget was not the only means by which projects could be funded. Other funding sources included bond issuances; short-term loans; excess funds; and special assessments. The River Road portion of pipe that was replaced after the accident was a 1,000-foot portion, and the River Street portion was 2,000 feet long. The December 3, 2007, engineering agreement addressed only the River Street project. At that time, Ortgiesen did not have any discussions with Cox concerning whether to address the main under River Road. "We never had reason to."

¶ 18 During trial, the City moved for a directed verdict, raising its discretionary immunity defense. The trial court denied the City's motion. After the City rested its case, it renewed its motion for a directed verdict. The trial court denied the motion on November 18, 2011.

¶ 19 On November 19, 2011, the jury returned a verdict, awarding Ponto $585,123.74 in damages and apportioning fault at 65% to Levan and 35% to the City. Ponto and the City subsequently cross-briefed the issue of the City's joint and several and contribution liability. Ponto argued that the joint liability statute imposes joint and several liability for both direct and third-party defendants and that the Contribution Act, which must be applied after assessing joint and several liability, does not conflict with it. Ponto noted that Levan's automobile liability policy limit was $100,000 and that he was judgment proof beyond that amount. The City argued that the right of contribution existed only among tortfeasors and that Levan had to pay before the City's contribution obligation was triggered. It claimed that, under the Contribution Act, Ponto could recover from only a direct, not a third-party, defendant. The trial court, on January 26, 2011, agreed with the City and entered judgment such that the City's contribution responsibility was triggered "only at such time as *** Levan has paid more than his pro rata share of the judgment to *** Ponto and only for that amount paid to her which is in excess of his pro rata share of the judgment."

¶ 20 Ponto (joined by Levan) moved the court to reconsider its order denying her leave to amend her complaint to add the City as a direct defendant. She also asked that the City be held jointly and severally liable to her for 100% of the total damages or, in the alternative, that the City be held severally liable to her for 35% of the total damages. The City also filed a posttrial motion, arguing that it was immune from liability for the discretionary acts of its employees and officials. On March 30, 2011, the trial court denied the motions. Ponto and Levan appeal, and the City cross-appeals.

¶ 21 II. ANALYSIS

¶ 22 A. Ponto's and Levan's Appeals

¶ 23 1. Leave to Amend

ΒΆ 24 Ponto (joined by Levan) argues first that the trial court erred in denying her leave to amend her complaint to add the City as a (direct) defendant. The City had argued that the Tort Immunity Act's one-year statute of limitations applied and that Ponto's complaint was untimely because it was filed more than two years after the accident. The trial court denied Ponto's request, finding that the one-year limitations period applied and that section 2-406 of the Code did not ...


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