Court of Appeals of Illinois, First District, Sixth Division
from the Circuit Court of Cook County, No. 13 L 7598
Honorable John H. Ehrlich, Judge Presiding.
JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion. Presiding Justice Hoffman and Justice Delort
concurred in the judgment and opinion.
1 In this negligence action against the defendant-appellee
the City of Chicago (City), plaintiff-appellant Mirko
Krivokuca (plaintiff) appeals from (1) the order of the
circuit court granting the City's motion to dismiss the
second negligence count of the plaintiff's complaint
premised upon the doctrine of res ipsa loquitur and
(2) the subsequent order granting summary judgment to the
City with respect to the first count of the complaint
asserting ordinary negligence. We affirm the circuit
court's orders in favor of the City.
3 On the morning of April 18, 2013, the plaintiff was driving
his pickup truck near the intersection of 96th Street and
Houston Avenue in Chicago. According to his pleadings, after
the vehicle struck a pothole, "a sinkhole opened up in
the road, causing the entire car to fall into the
sinkhole." At his deposition, the plaintiff testified
that the ground suddenly opened up and the back of his
vehicle sank several feet below the ground. The plaintiff
called 911, and was transported by ambulance to a hospital,
where he was treated for various injuries. His vehicle was
later removed from the sinkhole and impounded by the City.
The plaintiff claims that his vehicle was later destroyed by
the City without providing him notice.
4 On July 2, 2013, the plaintiff filed his initial complaint,
containing two counts. The first count for negligence alleged
that the City was liable for, inter alia, failing to
properly maintain the roadway and sewers near the site and
"[f]ailing to repair defects *** which it knew or should
have known posed a risk of property damage and injury"
to members of the public.
5 Count II of the complaint was entitled "Res Ipsa
Loquitur." Count II pleaded that the City was liable to
the plaintiff because "a sinkhole does not ordinarily
open in a street in the absence of negligence" by the
party controlling it; that the street and sewer system were
under the exclusive control of the City; and that the
plaintiff did not contribute to causing the sinkhole.
6 On October 3, 2013, the City filed a motion to dismiss
count II of the complaint pursuant to section 2-619(a)(9) of
the Code of Civil Procedure, which permits dismissal of a
complaint where a claim is barred by "affirmative matter
avoiding the legal effect of or defeating the claim."
735 ILCS 5/2-619(a)(9) (West 2012). The City asserted that
the res ipsa loquitur count could not be maintained
in light of section 3-102(a) of the Local Governmental and
Governmental Employees Tort Immunity Act (Act), which
"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 to an injury to have
taken measures to remedy or protect against such
condition." 745 ILCS 10/3-102(a) (West 2014).
7 The City argued that the Act's requirement of
"actual or constructive notice" of a dangerous
condition in order to hold the City liable precluded recovery
under a res ipsa loquitur theory. The City reasoned
that res ipsa loquitur requires only two
elements-that the occurrence would not ordinarily occur in
the absence of negligence and that the defendant had
exclusive control of the instrumentality that caused
injury-but did not require prior notice of a dangerous
condition. The City argued that a res ipsa loquitur
claim could not be asserted against a municipal defendant,
since the Act "bars premises liability claims against
municipalities unless plaintiff can prove prior notice of a
8 The plaintiff filed a response to the motion to dismiss the
res ipsa loquitur count on October 16, 2013. The
plaintiff did not dispute the application of section 3-102(a)
of the Act to his lawsuit, but argued that it did not bar a
res ipsa loquitur claim because the Act "did
not impose any new duties or rights that were not available
under the common law." The plaintiff cited two decisions
(both decided before passage of the Act) which applied the
res ipsa loquitur doctrine against a municipal
defendant. See Roberts v. City of Sterling, 22
Ill.App.2d 337 (1959); Bolger v. City of Chicago,
198 Ill.App. 123 (1916). The plaintiff acknowledged that these
decisions predated the Act, but nevertheless maintained they
supported "the liability of municipalities based on
res ipsa loquitur *** since section 3-102(a) did not
change the common law rules relating to the right and
liabilities of municipalities concerning their real
property." The plaintiff claimed that res ipsa
loquitur applied in this case because the City had
"complete control" and knowledge of the conditions
of the street and underground structures at the sinkhole
site, and also asserted that the City had "actual notice
or constructive notice of such facts and circumstances as
would, by the exercise of reasonable diligence, lead a
prudent person to the knowledge that a dangerous condition
9 On November 12, 2013, the City filed a reply in further
support of its motion to dismiss, in which it argued that the
pre-Act decisions cited by the plaintiff did not control, and
that the notice requirement in the Act precluded application
of res ipsa loquitur.
10 On January 27, 2014, the City filed its answer to the
original complaint. With that answer, the City asserted
"statutory defenses" under section 3-102(a) of the
Act that the street and underground structures at the the
site of plaintiff's alleged injury were "reasonably
safe, " and that it lacked either actual or constructive
notice of an unreasonably dangerous condition, as required to
impose liability under section 3-102(a).
11 The record on appeal does not include a transcript from
any hearing on the motion to dismiss. However, on January 30,
2014, the court entered an order granting the City's
motion and dismissing the res ipsa loquitur count
(count II) with prejudice.
12 Following the dismissal the res ipsa loquitur
count, the parties engaged in discovery, during which it was
revealed that the City had repaired a water main leak in
January 2013 near the site of the April 2013 sinkhole.
13 On August 12, 2014, the parties deposed Timothy Dowdy and
John Hosty, City personnel who had responded to the January
2013 leak and April 2013 sinkhole, respectively.
14 Dowdy, a foreman of water pipe construction for the City,
had responded to the January 2013 leak. Dowdy testified that
he had performed work near the intersection of 96th Street
and Houston Avenue in response to a report of water
percolating through a parkway. Dowdy observed "a small
leak coming up in the grass in the parkway" south of the
intersection. Dowdy's crew excavated the street and
parkway and accessed the water main. He found a "small
circumference crack in the water main" which he
described as "a hairline crack all the way around"
15 The water main at the site had a 6-inch diameter. Dowdy
testified that "a minimum size of eight inches is used
in today's construction, " although he did not know
when that change was made. He agreed that since the main had
a 6-inch diameter, it was probably an "original
pipe" but he had "no idea" how old it was.
Asked if it could be 100 years old or more, he answered:
"it could be. I have no idea."
16 Dowdy testified that he repaired the January 2013 leak by
installing a repair clamp, which "goes over the entire
pipe and tightens down, a watertight seal." He testified
that the leak was completely resolved by the clamp and that
such a repair "will last forever." Dowdy did not
return to the site after the January 2013 repair.
17 Dowdy was shown a work order concerning the April 2013
sinkhole repair. He acknowledged "it could be the same
water main" as the January 2013 leak but could not tell
if the April 2013 water main break ...