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Monson v. City of Danville

Supreme Court of Illinois

August 2, 2018

BARBARA MONSON, Appellant,
v.
THE CITY OF DANVILLE, Appellee.

          JUSTICE BURKE delivered the judgment of the court, with opinion. Chief Justice Karmeier and Justices Garman and Neville concurred in the judgment and opinion.

          OPINION

          BURKE, JUSTICE.

         ¶ 1 At issue in this appeal is whether sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/2-109, 2-201 (West 2012)), apply to a city's failure to repair a sidewalk defect. The plaintiff in this case filed suit against the City of Danville (City) to recover for her injuries from tripping and falling on an uneven seam in a sidewalk. The City moved for summary judgment under sections 2-109 and 2-201 of the Act on the grounds that its employees exercised discretion in determining which portions of the sidewalk were in need of repair or replacement. The circuit court of Vermilion County granted the motion and entered summary judgment for the City. The appellate court affirmed. 2017 IL App (4th) 160593. For the reasons that follow, we reverse the lower courts' judgments and remand the cause to the circuit court for further proceedings.

         ¶ 2 BACKGROUND

         ¶ 3 On the afternoon of December 7, 2012, plaintiff, Barbara Monson, was shopping in the downtown business district of Danville, Illinois. She parked her car on the street near the intersection of North and Vermilion Streets and walked to a nearby pawn shop. According to plaintiff's deposition testimony, it had rained earlier in the day, causing approximately one inch of water to pool on low areas of the sidewalk. After visiting the pawn shop, plaintiff began walking back to her car. Plaintiff testified she felt her foot hit a piece of concrete, which caused her to trip and fall forward onto the sidewalk. She sustained multiple injuries as a result of her fall.

         ¶ 4 The record contains the deposition testimony of Shelly Larson, the superintendent of downtown services at the time of the incident, and Doug Ahrens, the director of the public works department. They testified that a project to inspect and repair sidewalks in the downtown area was begun in the fall of 2011 and completed in March 2012. Larson did an initial walk-through and identified areas of concern by marking them with highlighter paint. Ahrens conducted his own walk-through and, after conferring with Larson and other City employees, made the final decisions about which sections of sidewalk would be repaired, replaced, or removed altogether.

         ¶ 5 Ahrens testified he made the determinations on a case-by-case basis, considering the condition of the concrete; the height of the variations between slabs of sidewalk; the normal path of travel for pedestrians; the intended use of the area; proximity to buildings, light poles, and trees; and the available time and cost. There was no written policy addressing these factors, nor was there a policy that any deviation of a certain size, i.e., more than two inches, necessitated replacement. Ahrens testified he could not recall inspecting or measuring the particular slabs of concrete where plaintiff fell, nor did he recall making a decision not to repair those specific slabs. He stated, however, that the area would have fallen within the parameters of the project. When asked whether he considered that section of the sidewalk for potential repair, Ahrens stated, "I believe we did consider the slab of concrete because we looked at every slab of concrete."

         ¶ 6 Ahrens also signed an affidavit averring, to the best of his knowledge and memory, that the portions of the sidewalk where plaintiff fell "were either not prioritized to be in need of replacement at that time or such replacement could not fit with the allowable time and budget for that project ***. Therefore, in or around the Fall of 2011, I used my discretion as Public Works Director not to replace that portion of the sidewalk."

         ¶ 7 Plaintiff filed a complaint against the City alleging negligence and willful and wanton conduct. The complaint alleged the City breached its duty to maintain its premises in a reasonably safe condition by (i) failing to provide a safe means of ingress and egress on the sidewalk by allowing a portion thereof to become sunken, broken, worn, uneven, and/or unsafe; (ii) allowing an unreasonably dangerous condition to exist; (iii) allowing the sidewalk to remain in a dangerous condition despite having actual and/or constructive knowledge of the dangerous condition; (iv) failing to correct or repair the sidewalk; (v) permitting a portion of the sidewalk to become and remain in a dangerous condition, thereby presenting a hazard to those persons it reasonably anticipated would use the sidewalk; (vi) failing to adequately warn pedestrians of the dangerous condition; and (vii) failing to maintain its property in a reasonably safe condition. As a result of the City's acts or omissions, plaintiff alleged she sustained serious and permanent injuries to her face, mouth, foot, shoulder, and arm.

         ¶ 8 The City filed a motion requesting summary judgment on the ground that it was immune from liability pursuant to sections 2-109 and 2-201 of the Act (745 ILCS 10/2-109, 2-201 (West 2012)). The City also argued plaintiff's claim was not actionable because the alleged sidewalk defect was de minimis and the condition was open and obvious. The trial court granted the motion and entered summary judgment in favor of the City solely based on tort immunity. The court did not consider the City's alternative arguments.

         ¶ 9 On appeal, plaintiff argued section 3-102(a) of the Act (id. § 3-102(a)), which codifies a municipality's duty at common law to maintain its property in a reasonably safe condition, supersedes the discretionary immunity under section 2-201 of the Act. The appellate court rejected that argument and affirmed the trial court's entry of summary judgment. 2017 IL App (4th) 160593, ¶ 35. The court held section 3-102(a) does not supersede the immunity in section 2-201. Id. ¶ 30. The court further held the City adequately established its immunity from liability pursuant to sections 2-109 and 2-201 of the Act. Id. ¶¶ 30, 33.

         ¶ 10 This court allowed plaintiff's petition for leave to appeal. Ill. S.Ct. R. 315(a) (eff. Mar. 15, 2016). We allowed amicus curiae briefs to be filed by the Illinois Trial Lawyers Association, in support of plaintiff, and by the Illinois Association of Defense Trial Counsel and the Township Officials of Illinois Risk Management Association, in support of the City. Ill. S.Ct. R. 345 (eff. Sept. 20, 2010).

         ¶ 11 ANALYSIS

         ¶ 12 On appeal of an order granting summary judgment, a reviewing court must determine whether "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2012). The purpose of summary judgment is not to try an issue of fact but to determine whether one exists. Adams v. Northern Illinois Gas Co., 211 Ill.2d 32, 42-43 (2004). "A genuine issue of material fact precluding summary judgment exists where the material facts are disputed, or, if the material facts are undisputed, reasonable persons might draw different inferences from the undisputed facts." Adames v. Sheahan, 233 Ill.2d 276, 296 (2009). Although summary judgment is encouraged in order to aid the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation. Adams, 211 Ill.2d at 43. Consequently, a court must construe the evidence in the record strictly against the movant and should grant summary judgment only if the movant's right to a judgment is clear and free from doubt. Id. On appeal from an order granting summary judgment, a reviewing court must consider whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether summary judgment is proper as a matter of law. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116-17 (1993). We review the trial court's summary judgment ruling de novo. Barnett v. Zion Park District, 171 Ill.2d 378, 385 (1996).

         ¶ 13 I. Tort Immunity Act

         ¶ 14 At issue is whether the City is entitled to immunity from liability pursuant to sections 2-109 and 2-201 of the Act. Determining whether the City is immune involves interpreting the language of the Act. Michigan Avenue National Bank v. County of Cook, 191 Ill.2d 493, 503 (2000). This is a question of law, which this court reviews de novo. See id.; Smith v. Waukegan Park District, 231 Ill.2d 111, 115 (2008); Barnett, 171 Ill.2d at 385. Our primary objective in interpreting a statute is to ascertain and give effect to the intent of the legislature. Taylor v. Pekin Insurance Co., 231 Ill.2d 390, 395 (2008). The most reliable indicator of that intent is the statutory language, given its plain and ordinary meaning. Id. We view the statute as a whole, bearing in mind the subject it addresses and the apparent intent of the legislature in enacting it. People ex rel. Madigan v. Wildermuth, 2017 IL 120763, ¶ 17. Words and phrases should not be viewed in isolation but, rather, must be considered in light of other relevant provisions in the statute. In re E.B., 231 Ill.2d 459, 466 (2008).

         ¶ 15 In 1965, the General Assembly enacted the Act in response to this court's abolition of sovereign immunity. Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11 (1959); Barnett, 171 Ill.2d at 386; see also Ill. Const. 1970, art. XIII, § 4 (recognizing the abolition of sovereign immunity, "[e]xcept as the General Assembly may provide by law"). The Act protects local public entities and their employees from liability arising from government operations. Van Meter v. Darien Park District, 207 Ill.2d 359, 368 (2003); 745 ILCS 10/1-101.1(a) (West 2012). The purpose of the Act is to prevent the dissipation of public funds on damage awards in tort cases. Murray v. Chicago Youth Center, 224 Ill.2d 213, 229 (2007) (citing Van Meter, 207 Ill.2d at 368). Unless a specific immunity provision in the Act applies, a public entity is liable in tort to the same extent as a private party. Id. Since the Act is in derogation of the common law, it must be construed strictly against the public entity seeking immunity. Snyder v. Curran Township, 167 Ill.2d 466, 477 (1995); Aikens v. Morris, 145 Ill.2d 273, 277-78 (1991).

         ¶ 16 The trial court granted summary judgment to the City on the grounds that it was entitled to immunity under sections 2-109 and 2-201 of the Act. Read together, these sections immunize a public entity from liability for the discretionary acts or omissions of its employees. See Smith, 231 Ill.2d at 118 (citing Arteman v. Clinton Community Unit School District No. 15, 198 Ill.2d 475, 484 (2002), and Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill.2d 484, 496 (2001)).

         ¶ 17 Section 2-109 of the Act states:

"A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable." 745 ILCS 10/2-109 (West 2012).

         ¶ 18 Section 2-201 of the Act states:

"Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." Id. § 2-201.

         The conditional language in section 2-201, "[e]xcept as otherwise provided by Statute," indicates that the legislature did not intend for the immunity in this provision to be absolute and applicable in all circumstances. See Murray, 224 Ill.2d at 232. Thus, discretionary immunity under section 2-201 "is contingent upon whether other provisions, either within the Act or some other statute, create[ ] exceptions to or limitations on that immunity." Id.

         ¶ 19 Plaintiff first argues that the City cannot claim discretionary immunity under sections 2-109 and 2-201 of the Act because section 3-102(a) supersedes these provisions. Section 3-102(a) states:

"(a) 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 2012).

         ¶ 20 Plaintiff characterizes section 3-102(a) as an immunity provision similar to other immunity provisions in the Act. She argues that section 3-102(a) "directly governs a local public entity's immunity relating to a dangerous condition of its property." In support, plaintiff points to the rule of statutory construction that holds that," '[w]here there are two statutory provisions, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one subject, the particular provision must prevail.'" Hernon v. E.W. Corrigan Construction Co., 149 Ill.2d 190, 195 (1992) (quoting Bowes v. City of Chicago, 3 Ill.2d 175, 205 (1954)). Relying on this rule, plaintiff contends that the City cannot claim discretionary immunity under the Act because the specific "immunities" in section 3-102(a) prevail over the general immunities in sections 2-109 and 2-201 and the City has failed to show it is entitled to immunity under section 3-102(a). We reject this argument.

         ¶ 21 The fatal flaw in plaintiff's reasoning is that section 3-102(a) does not grant any immunities. Section 3-102(a) contains two main clauses. The first clause states that a local public entity has a "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." 745 ILCS 10/3-102(a) (West 2012). The second clause states that a local public entity "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." Id.

         ¶ 22 Plaintiff acknowledges that the first clause simply sets forth a general duty on the part of a local public entity to maintain its property in a reason ably safe condition under certain circumstances. She argues, however, that the second clause in the statute operates as an immunity provision. According to plaintiff, section 3-102(a) immunizes local public entities from liability for the failure to maintain their property if either of two conditions exist: (1) the public entity ...


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