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Berz v. City of Evanston

Court of Appeals of Illinois, First District, Sixth Division

September 27, 2013

THOMAS BERZ, Plaintiff-Appellant,
v.
THE CITY OF EVANSTON, a Municipal Corporation, Defendant-Appellee.

Appeal from the Circuit Court of Cook County. No. 11 L 7025 The Honorable Diane Larson, Judge Presiding.

JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justice Reyes concurred in the judgment and opinion.

OPINION

LAMPKIN, JUSTICE

¶ 1 Plaintiff, Thomas Berz, appeals the circuit court's order dismissing his third amended complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2010)) where the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2010)) immunized defendant, the City of Evanston, against plaintiff's negligence claim. Plaintiff contends the circuit court erred in dismissing his third amended complaint because relevant Evanston ordinances and defendant's bicycle map established that he was an intended user of the alley where he was injured. Based on the following, we affirm.

¶ 2 FACTS

¶ 3 On September 4, 2010, plaintiff was riding his bicycle in Evanston, Illinois, in an alleyway behind the addresses of 1549 to 1555 Sherman Avenue, which runs between Grove Street and Davis Street, when he was injured by striking a pothole measuring 40 inches wide, 18 inches in length, and at least 4 to 5 inches deep. On July 7, 2011, plaintiff filed a complaint alleging negligence against defendant. On August 17, 2011, defendant filed a section 2-619(a)(9) motion to dismiss, arguing that section 3-102(a) of the Tort Immunity Act (745 ILCS 10/3-102(a) (West 2010)) provided immunity for defendant where plaintiff was not an intended user of the alley. On October 28, 2011, defendant's motion to dismiss was granted; however, plaintiff was granted leave to amend his pleading.

¶ 4 On November 14, 2011, plaintiff filed a first amended complaint alleging the same cause of action based on the same facts, but with increased specificity. In addition, plaintiff attached 19 photographs and an affidavit verifying his personal knowledge of the facts in the complaint, that he took the photographs after the incident, and that the photographs accurately depicted the pothole and alley conditions at the time of the incident. On November 18, 2011, plaintiff's counsel was granted leave to withdraw. Plaintiff's second attorney filed an appearance and was granted leave to file a second amended complaint.

¶ 5 On April 5, 2012, plaintiff filed a second amended complaint, alleging he was operating a bicycle in a northerly direction along and upon the alley behind the addresses of 1549 to 1555 Sherman Avenue between Grove Street and Davis Street when he was injured as a result of defendant's negligence in repairing and maintaining the alley for intended bicycle users. On May 10, 2012, defendant filed a section 2-619(a)(9) motion to dismiss the complaint, arguing that section 3-102(a) of the Tort Immunity Act created immunity for defendant where plaintiff was not an intended user of the alley. On August 2, 2012, plaintiff filed a response, arguing that bicyclists were intended users of the alleys because defendant defined bicycle as a vehicle and where the municipal code and bicycle map evinced an intent that bicyclists use the alleys. On August 29, 2012, the circuit court granted defendant's motion to dismiss, but granted plaintiff leave to file an amended complaint.

¶ 6 On September 5, 2012, plaintiff filed a third amended complaint, the subject of which is before this court. In that complaint, plaintiff alleged that he operated a vehicle in a northerly direction along and upon the alley between Grove Street and Davis Street. On October 10, 2012, defendant filed a section 2-619(a)(9) motion to dismiss, arguing that bicyclists are not intended users of the alleys, that a bicycle is not a vehicle, and that there were no physical manifestations demonstrating bicyclists were intended users of the alleys. On November 12, 2012, plaintiff filed a response, arguing that defendant's motion failed to address the allegation that plaintiff operated a vehicle. Defendant replied, stating that all of plaintiff's previous complaints alleged he was riding a bicycle and that a signed affidavit attached to the first amended complaint provided that he was riding a bicycle; therefore, plaintiff made a judicial admission that he was riding a bicycle. On November 27, 2012, the circuit court dismissed plaintiff's complaint with prejudice. This timely appeal followed.

¶ 7 DECISION

¶ 8 Plaintiff contends the circuit court erred in dismissing his third amended complaint where section 3-102(a) of the Tort Immunity Act did not immunize defendant from liability for plaintiff's injury because he was an intended user of the alleyway .

¶ 9 Plaintiff's complaint was dismissed pursuant to section 2-619(a)(9) of the Code. A section 2-619(a)(9) motion admits the legal sufficiency of the complaint, but asserts that it is barred by some other affirmative matter. Brennan v. Kadner, 351 Ill.App.3d 963, 967 (2004). In considering the motion, all well-pleaded facts and reasonable inferences drawn therefrom are admitted, and all pleadings and supporting documents are construed in a light most favorable to the nonmoving party. Id. When reviewing a section 2-619 motion to dismiss, we must consider whether a genuine issue of material fact exists which precludes dismissal and whether the affirmative matter negates the plaintiff's cause of action completely or refutes critical conclusions of law or conclusions of material unsupported fact. Turner v. 1212 S. Michigan Partnership, 355 Ill.App.3d 885, 892 (2005). We review de novo the dismissal of a complaint pursuant to section 2-619. Brennan, 351 Ill.App.3d at 967.

¶ 10 Plaintiff's complaint alleged defendant was negligent and, therefore, liable for his injuries. To establish a claim of negligence, a plaintiff must prove the defendant owed a duty of care to the plaintiff, the defendant breached that duty of care, and the plaintiff suffered an injury proximately caused by the breach. Doria v. Village of Downers Grove, 397 Ill.App.3d 752, 757 (2009); Latimer v. Chicago Park District, 323 Ill.App.3d 466, 468 (2001). In regard to defendant's duty of care, section 3-102(a) of the Tort Immunity Act provides:

"Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, 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 ...

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