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Richter v. College of Du Page

Court of Appeals of Illinois, Second District

December 31, 2013

BLANCHE RICHTER, Plaintiff-Appellant,
v.
COLLEGE OF DU PAGE, Defendant-Appellee.

Held [*]

In an action for the injuries plaintiff suffered when she tripped and fell on an uneven sidewalk at defendant college, summary judgment was properly entered for the college on the ground that discretionary immunity under sections 2-109 and 2-201 of the Tort Immunity Act applied, notwithstanding plaintiff’s contention that the duty to maintain property under section 3-102 of the Act made the sidewalk repair a ministerial function that could result in the college being liable if it was negligent in making the repair, since the college employee responsible for sidewalk repairs had unfettered discretion, he assessed each sidewalk problem individually, and he was not bound to follow any set of statutory or regulatory rules or guidelines; therefore, discretionary immunity barred plaintiff’s claim.

Appeal from the Circuit Court of Du Page County, No. 10-L-303; the Hon. Dorothy French Mallen, Judge, presiding.

Mario C. Palermo and Dexter J. Evans, both of Woodruff Johnson & Palermo, of Aurora, for appellant.

Kenneth M. Florey and Scott L. Ginsburg, both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for appellee.

Kenneth M. Florey and Scott L. Ginsburg, both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for appellee.

Panel JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices McLaren and Hutchinson concurred in the judgment and opinion.

OPINION

SPENCE JUSTICE

¶ 1 Plaintiff, Blanche Richter, filed suit against defendant, the College of Du Page (the College), after falling on an uneven sidewalk. The College raised an affirmative defense under sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-109, 2-201 (West 2010)) and moved for summary judgment. At issue is whether the handling of the sidewalk deviation was a discretionary act under section 2-201 (745 ILCS 10/2-201 (West 2010)) or a ministerial act under section 3-102 (745 ILCS 10/3-102 (West 2010)) of the Tort Immunity Act. The trial court determined that the College was entitled to discretionary immunity under sections 2-109 and 2-201 because the handling of the sidewalk deviation was both an exercise of discretion and a policy determination, as opposed to a ministerial act. The court granted the College's motion for summary judgment, and plaintiff appeals. We affirm.

¶ 2 I. BACKGROUND

¶ 3 A. Complaint and Affirmative Defenses

¶ 4 On March 3, 2010, plaintiff filed a complaint against the College, alleging as follows. On March 12, 2009, at about 6:50 p.m., plaintiff was approaching the revolving door on the south side of the Student Resource Center (SRC) building. As she neared the revolving door, plaintiff caught her foot on a raised portion of the sidewalk, causing her to fall forward against the revolving door and sustain injuries. Plaintiff alleged that the College had actual notice of the uneven walkway prior to March 12, 2009, and had painted the raised portion of the sidewalk yellow. Plaintiff alleged that the College was negligent for failing to repair the uneven sidewalk.

¶ 5 The College filed an answer and raised three affirmative defenses to plaintiff's complaint. First, the College argued that the height differential between the slabs of concrete in the sidewalk was de minimis. Second, the College argued that it was immune under section 3-102 of the Tort Immunity Act because it maintained its premises and did not have actual or constructive knowledge that the sidewalk was not reasonably safe. Third, the College argued that the risk was open and obvious to plaintiff.

¶ 6 Eventually, and over plaintiff's objection, the College was given leave to file an additional affirmative defense under sections 2-109 and 2-201 of the Tort Immunity Act. The College argued that it was entitled to discretionary immunity under those two sections of the Tort Immunity Act.

¶ 7 B. Deposition Testimony

¶ 8 The record contains several depositions. In plaintiff's deposition, she testified that she was a 45-year-old student at the College. On March 12, 2009, she was going to class at the SRC building, wearing a "pant boot" with a wedge heel. The area was well-lit and it was still "pretty light out." Plaintiff was familiar with the area, as she was "well into the semester." As she walked toward the revolving door, plaintiff felt her heel get caught. The next thing plaintiff knew, she "was flying towards the revolving door." Her knee hit the ground and her shoulder and face hit the revolving door. The raised portion of the sidewalk, about 1 to 1½ inches high, was approximately 3 feet from the revolving door. Plaintiff admitted that she was not looking at the ground before she fell, because she was looking to see whether someone was exiting through the revolving door. She did not see any yellow paint or sign warning of an uneven surface. Plaintiff stated that, when walking, she generally did not look at the ground; she looked straight ahead.

¶ 9 Lauri Page, plaintiff's friend, took plaintiff to retrieve her car from the College the day after the accident. Page saw the 1-to 1½-inch raise in the sidewalk where plaintiff fell; a yellow line was painted across the raise. It was a "pretty obvious raise" because of its size.

ΒΆ 10 Susan Benton, the benefits manager at the College, worked in the SRC building. If Benton saw something unsafe on the College grounds, she would call the foreman of the buildings-and-grounds department. Benton offered conflicting testimony as to whether she called about an uneven sidewalk near the south entrance of the SRC building before or after March 2009. Later, Benton said that she called the buildings-and-grounds department because she observed a raise in the sidewalk and thought that it "could present an issue" or a safety hazard. At most, the raise was one-quarter of one inch. Benton was not aware that anyone besides plaintiff had stumbled on the uneven sidewalk. Within a short period ...


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