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Ricky Robinson, Jr., A Minor, By Beverly Bourne, His Mother and Next Friend v. Washington Township

August 29, 2012

RICKY ROBINSON, JR., A MINOR, BY BEVERLY BOURNE, HIS MOTHER AND NEXT FRIEND,
PLAINTIFF-APPELLANT,
v.
WASHINGTON TOWNSHIP, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE, ANGELA MANCHA AND FRANK MARTINEZ,
PLAINTIFFS.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Honorable Michael J. Powers, Judge, Presiding. Circuit No. 08-L-986

The opinion of the court was delivered by: Justice Lytton

JUSTICE LYTTON delivered the judgment of the court, with opinion. Justice McDade concurred in the judgment and opinion.

Justice Holdridge dissented, with opinion.

OPINION

¶ 1 Plaintiff, Ricky Robinson, Jr., a minor, appeals from an order of the circuit court dismissing his complaint against defendant, Washington Township, a municipal corporation, for injuries he sustained when the automobile in which he was riding hit a pothole and crashed. The trial court found defendant immune from liability pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2008)). On appeal, plaintiff argues that the court erred in granting defendant's motion to dismiss because defendant had a duty to repair the roadway in a reasonably safe manner once it began the work. We reverse and remand for further proceedings.

¶ 2 On April 23, 2008, Ricky was a passenger in a motor vehicle driven by his father, Ricky Robinson, Sr. As Robinson Sr. was driving southward on Stony Island Road in Washington Township, he hit a pothole, ran over road construction debris and lost control of the vehicle. The car rolled over and landed on its roof. Ricky sustained blunt head trauma and a puncture wound to his back.

¶ 3 Ricky's mother filed suit on his behalf, claiming that the township had a duty to exercise ordinary care and caution while completing the roadway repairs. The township moved to dismiss, arguing that it was immune from liability under sections 2-109 and 2-201 of the Tort Immunity Act because filing potholes was a discretionary function. See 745 ILCS 10/2-109, 2-201 (West 2008). The trial court agreed and granted the township's motion without prejudice.

¶ 4 In response, plaintiff filed an amended complaint, claiming that defendant's repair of the roadway amounted to careless and negligent conduct. The complaint alleged that the road bed had sand and dirt piled in humps and ruts, had potholes and debris, and had an uneven and undulating surface. Plaintiff claimed that defendant:

"(a) After having started repairs, failed to provide a road free of hazardous defects when the Defendant knew or should have known of the existence of the hazardous conditions of the road.

(b) After having started repairs, failed to maintain a road in a reasonably safe condition when the Defendant knew or should have known of the existence of the hazardous conditions of the road.

(c) After having started repairs, failed to properly inspect the road for hazardous defects when the Defendant knew or should have known of the existence of the hazardous conditions of the road.

(d) After having started repairs, failed to warn motorists by the use of properly located legible signs of the existence of uneven and undulating surface when the Defendant knew or should have known of the existence of the hazardous conditions of the road.

(e) After having started repairs, failed to warn motorists by the use of properly located legible signs of the existence of the potholes and pitted surface when the Defendant knew or should have known of the existence of the hazardous conditions of the road.

(h) After having started repairs, failed to provide and use suitable temporary covers over potholes, pits and uneven surfaces when the Defendant knew of should have known of the ...


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