Bray v. City of Chi.
| Docket Number | 1-20-1214 |
| Decision Date | 29 March 2022 |
| Citation | 2022 IL App (1st) 201214,203 N.E.3d 398,461 Ill.Dec. 244 |
| Parties | Marilyn BRAY, Plaintiff, v. The CITY OF CHICAGO, a Municipal Corporation; SL Civic Wacker LLC ; and Lyric Opera of Chicago, Defendants, (The City of Chicago, a Municipal Corporation, Defendant and Counterplaintiff-Appellant; SL Civic Wacker LLC, and Lyric Opera of Chicago, Defendants and Counterdefendants-Appellees). |
| Court | United States Appellate Court of Illinois |
Celia Meza, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Elizabeth Mary Tisher, Assistant Corporation Counsel, of counsel), for appellant.
Dan Alexander and Mike Mayerck, of Maron Marvel Bradley Anderson & Tardy LLC, of Chicago, for appellee SL Civic Wacker, LLC.
Kurt E. Olsen, of Krakar & Olsen, of Chicago, for other appellee.
¶ 1 Marilyn Bray, who is not a party to this appeal, was injured when she tripped and fell on an uneven seam in a sidewalk owned by the City of Chicago (City). The sidewalk was located above underground storage vaults that were used by SL Civic Wacker LLC (SL Civic) and its tenant, Lyric Opera of Chicago (Lyric Opera). At the time of Bray's fall, SL Civic held a valid public way use permit from the City for the vaults, but it allowed Lyric Opera to use the vaults pursuant to the terms of their lease agreement. Due to her injuries, Bray filed a premises liability action against the City, SL Civic, and Lyric Opera, alleging that they negligently maintained the sidewalk by failing to repair the defect.
¶ 2 The City, however, subsequently filed counterclaims against SL Civic and Lyric Opera (counterdefendants), respectively, seeking contribution and indemnity for all or a portion of any judgment entered in favor of Bray in the underlying action. According to the City, they were liable for any negligence to Bray because the Chicago Municipal Code (Municipal Code) provisions governing both public way and subsidewalk space use required them to maintain the sidewalk over the vaults.
¶ 3 SL Civic moved to dismiss the City's counterclaim against it, while Lyric Opera moved for summary judgment, both arguing they owed Bray no duty of care, statutory or otherwise, regarding the maintenance, repair, and/or use of the sidewalk where she fell. The circuit court agreed and granted their respective motions. The court therefore dismissed with prejudice the City's counterclaim against SL Civic and entered summary judgment in favor of Lyric Opera on the City's counterclaim against it.
¶ 4 In this interlocutory appeal, the City maintains that a duty of care was imposed on SL Civic and Lyric Opera, respectively, stemming from their permit and lease obligations to comply with all Municipal Code provisions. For the reasons that follow, we affirm in part and reverse in part the circuit court's judgment and remand for further proceedings.
¶ 6 The following relevant facts were gleaned from the parties’ pleadings, depositions, affidavits, and other supporting documents and were all presented to the court below.
¶ 7 On March 15, 2017, Bray was walking eastbound on West Madison Street in downtown Chicago when she tripped and fell on an uneven seam in the sidewalk, which was owned by the City. The sidewalk was located next to the Civic Opera Building over some underground storage vaults that were used by the building's owner, SL Civic, and its tenant, Lyric Opera. Although the City owned the vault space, it had previously issued SL Civic a public way use permit to construct and maintain the vaults.
¶ 8 As we will discuss below, SL Civic was obligated under the terms of the permit to comply with "the provisions of [s]ection 10-28-015 and all other required provisions of the Municipal Code" governing, among other things, public way use liability. See Chicago Municipal Code § 10-28-015 (amended Oct. 14, 2021). Lyric Opera, on the other hand, was not a permit holder for the vaults, but it used them for storage pursuant to the terms of its lease agreement with SL Civic. The lease agreement, however, expressly required Lyric Opera to "comply with all Laws," thereby including those laws set forth in the Municipal Code, which will also be discussed in greater detail below. Bray sustained injuries from the fall including fractures to her kneecap and elbow, among other injuries.
¶ 9 A few months after her fall, Bray filed a premises liability action against the City, alleging that the City's negligence in failing to repair the sidewalk defect was the direct and proximate cause of her injuries. Bray, however, later amended her complaint to add negligence claims against SL Civic and Lyric Opera, respectively, alleging that they were either a "permit holder and/or beneficiary of a permit for the use of a vaulted sidewalk" and, therefore, they had a duty to maintain the sidewalk in a reasonably safe condition.
¶ 10 We note, however, that Bray's negligence claim against SL Civic was initially dismissed without prejudice for failing to allege facts that showed SL Civic "assumed control" of the sidewalk above the vaults, but she eventually refiled the claim, setting forth additional allegations against SL Civic. Specifically, Bray asserted that even if SL Civic did not assume control of the sidewalk, it was obligated to maintain the sidewalk under section 10-28-540 of the Municipal Code (Chicago Municipal Code § 10-28-540 (amended Nov. 9, 2016)), which requires "[e]very person using the space under any sidewalk" to "keep such sidewalk in good and safe condition and repair."
¶ 11 Meanwhile, the City filed two-count counterclaims against SL Civic and Lyric Opera, respectively, seeking contribution and indemnity for all or a portion of any judgment entered in favor of Bray in the underlying action. The City alleged that counterdefendants were liable for any negligence to Bray because each had a duty stemming from their contractual obligations to maintain the sidewalk over the vaults in a reasonably safe condition, that they breached that duty by not repairing the purported sidewalk defect, and that the breach proximately caused Bray's injuries.1 In support, the City attached to its counterclaims a copy of SL Civic's public way use permit, providing the vaults had to be maintained in accordance with all City ordinances and the Municipal Code.
¶ 13 SL Civic, thereafter, moved to dismiss the City's counterclaim against it pursuant to section 2-615 of the Code of Civil Procedure (Civil Code) ( 735 ILCS 5/2-615 (West 2018) ), asserting that neither its permit nor the Municipal Code imposed on it a duty to maintain and repair the sidewalk over the vaults it used. For the same reasons, SL Civic also moved to dismiss Bray's negligence claim against it, albeit under section 2-619 of the Civil Code (id. § 2-619).
¶ 14 Following a hearing, the circuit court granted the dismissal motions, holding that SL Civic owed no duty of care to Bray because "nothing show[ed] the permit required SL Civic to maintain the sidewalk above the vaults" or that "SL Civic assumed control over the sidewalk." The court concluded that SL Civic, therefore, could not be held liable for Bray's injuries. Consequently, the court entered an order on January 28, 2020, dismissing with prejudice Bray's negligence claim against SL Civic, as well as the City's counterclaim against SL Civic for contribution and indemnity.
¶ 16 Lyric Opera, meanwhile, moved for summary judgment on the City's counterclaim against it, and on Bray's negligence claim against it. Lyric Opera argued in its summary judgment motion against the City, as relevant here, that it was entitled to judgment as a matter of law because it had no legal duty under either its lease agreement with SL Civic or the Municipal Code to repair the sidewalk over the vaults it used for storage. In support, Lyric Opera attached to its motion an affidavit from its chief financial and administrative officer, Roberta Lane. Her affidavit stated that while Lyric Opera used "some of the space within the subsidewalk vaults as a storage area," it "never under[took] to repair or maintain the vaults."
¶ 17 Lyric Opera also supported its motion with a copy of its lease agreement with SL Civic.2 The lease agreement provided that Lyric Opera was responsible for installing "any membrane it require[d] to prevent leakage from sidewalks above any below-ground vault area it may be using for storage or equipment or other purposes." Additionally, Lyric Opera was responsible "for removing and replacing any such sidewalk to install a membrane to prevent and stop leakage." According to Lyric Opera, this did not impose any legal duty on it to maintain and repair the sidewalk over the vaults where Bray fell since it never installed an anti-leak membrane under that sidewalk.
¶ 18 In response, the City asserted that a duty of care arose based on Lyric Opera's use of the vaults below the sidewalk where Bray fell and the terms of its lease agreement whereby Lyric Opera effectively agreed to maintain those vaults to prevent any water leakage inside them. The City argued this, at the very least, created a genuine issue of material fact as to whether Lyric Opera had sufficient control over the space to give rise to a duty of care, precluding summary judgment. The City supported its response with an affidavit from the assistant chief engineer of its transportation department, Luis Benitez. His affidavit stated that the sidewalk where Bray fell was "specifically designed" to act as a roof to the underground vaults whose structure was "solely for the benefit of the owner of the Civic Opera Building and its occupants/tenants."
¶ 19 The circuit court ultimately disagreed, concluding that while Lyric Opera might have benefitted from using the vaults, this did not establish that it had a duty to maintain and repair the sidewalk...
To continue reading
Request your trial