Monson v. City of Danville

• Decision Date: 15 June 2017
• Docket Number: NO. 4-16-0593,4-16-0593
• Citation: 2017 IL App (4th) 160593,80 N.E.3d 87
• Parties: Barbara MONSON, Plaintiff-Appellant, v. The CITY OF DANVILLE, a Home Rule Municipality, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2017 IL App (4th) 160593
80 N.E.3d 87

Barbara MONSON, Plaintiff-Appellant,
v.
The CITY OF DANVILLE, a Home Rule Municipality, Defendant-Appellee.

NO. 4-16-0593

Appellate Court of Illinois, Fourth District.

June 15, 2017

Miranda L. Soucie, of Spiros Law, P.C., of Danville, for appellant.

Scott B. Dolezal and Scott D. McKenna, of Best, Vanderlaan & Harrington, of Chicago, for appellee.

OPINION

JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In December 2013, plaintiff, Barbara Monson, sued defendant, the City of Danville (City), requesting compensation for

80 N.E.3d 88

injuries she sustained as a result of her tripping and falling onto a sidewalk the City maintained.

¶ 2 In March 2015, the City filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure ( 735 ILCS 5/2-1005 (West 2014) ). Following a July 2016 hearing, the trial court granted summary judgment in the City's favor, finding that the City was immune under 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 2014)).

¶ 3 Monson appeals, arguing essentially that the trial court erred by granting summary judgment in the City's favor because the court misapplied the immunity afforded by the Act. For the reasons that follow, we affirm.

¶ 4 I. BACKGROUND

¶ 5 The following synopsis was gleaned from the parties' pleadings, depositions, affidavits, and other supporting documents filed in the trial court.

¶ 6 On the afternoon of December 7, 2012, Monson went shopping. The temperature that day was mild, and conditions were wet because of an earlier rainstorm. Upon leaving a store in the City's downtown district, Monson walked north to her car, which was parked facing east on an intersecting street about five storefronts away. When she reached the intersection, Monson turned east and walked on the sidewalk between the side of a pharmacy (to her right) and a lamppost positioned closer to the street (to her left). Monson then walked at an angle toward the street curb where she had parked her car. As Monson did so, she walked into an inch of water that had formed on the sidewalk to the right of the lamppost. At that moment, Monson felt her left shoe strike something, which caused her to lose her balance, fall forward, and hit her chin on the sidewalk. Monson required nine stitches to close the cut to her chin and suffered bruising to her left toe, arms, lips, neck, and bicep. Monson also had dental work performed on two chipped teeth and a crown that had partially dislodged from another tooth.

¶ 7 In December 2013, Monson sued the City, alleging that the City's negligence and willful and wanton misconduct in failing to repair an uneven seam between two slabs of sidewalk concrete was the direct and proximate cause of her fall. In her prayer for relief, Monson requested compensation for the injuries she sustained as a result of her striking the defect.

¶ 8 In March 2015, the City filed a motion for summary judgment, in which it included the discovery depositions of (1) Shelly Larson, the City's superintendant of downtown services, and (2) James Douglas Ahrens, the City's public works director.

¶ 9 Larson testified that her various responsibilities as the City's superintendant of downtown services included maintaining the downtown sidewalks. In 2011, Larson personally walked the City's downtown district and spray painted places that she believed required repair, replacement, or removal. Shortly thereafter, the City's engineer toured each site with Larson to determine what recommendations, if any, to make. Larson noted that work later performed on the downtown sidewalks included portions near where Monson had fallen, which were markedly distinct in color from the original concrete.

¶ 10 Larson learned of Monson's claim against the City in late spring 2013, when she accompanied Cathy Courson, the City's risk manager, as Courson took pictures of where Monson had fallen. Upon arriving, Larson saw "a low spot of moisture" and repositioned a nearby city garbage receptacle to prevent other pe

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destrians from encountering the low spot. Larson did so because she believed that an uneven seam existed between adjoining slabs of concrete, and she wanted to prevent pedestrians from encountering that deviation.

¶ 11 Ahrens testified that the decision to repair, replace, or remove a slab of concrete is a case-by-case determination based upon numerous factors, which included the (1) intended use of the area, (2) normal path of travel, (3) condition of the concrete, (4) proximity to other obstructions, (5) elevation deviations between concrete sections, (6) availability of personnel, and (7) costs. Although not documented as City policy, Ahrens agreed that the aforementioned factors were developed over multiple years in consultation and collaboration with other City departments and personnel. Ahrens stated that the deviation between the two concrete slabs at issue was less than two inches, but elevation deviations alone were not a definitive factor in deciding whether to repair, replace, or remove a slab of concrete.

¶ 12 In fall 2011, Ahrens began a City project to "enhance the downtown area" and "improve sidewalk conditions" by inspecting "every slab of concrete in the downtown area." Ahrens explained that Larson and the City's engineer made initial recommendations regarding areas they believed required attention. Larson and others later accompanied Ahrens on an inspection of the City's downtown, which included viewing their recommendations. Ahrens averred that although he could not specifically recall if he inspected the exact slab of concrete where Monson had fallen, his walk-through of the downtown area would have included that area. Ahrens confirmed that he made the final decisions regarding repair, replacement, or removal. In his affidavit, Ahrens stated that he "utilized [his] discretion as the public works director to determine which portions of [the] sidewalks were in need of repair and which portions were not in need of repair." In March 2012, the enhancement project was completed.

¶ 13 In July 2016, the trial court conducted a hearing on the City's motion for summary judgment and, thereafter, took the matter under advisement. Later that month, the court entered the following order:

"[The City's] motion for summary judgment is granted. The Court, in its decision, relies heavily on [ Richter v. College of Du Page , 2013 IL App (2d) 130095, 378 Ill.Dec. 337, 3 N.E.3d 902,] which the court feels addresses the issues raised by both [Monson] and [the City] * * *.

The Court finds, based on the depositions of * * * Ahrens and * * * Larson, that * * * Ahrens was the one that made decisions about sidewalk repair. * * * Larson would mark * * * areas on the sidewalk that she deemed problematic while inspecting the downtown sidewalks. After * * * Larson's inspection, she notified * * * Ahrens who, along with * * * Larson and others, would conduct his own inspection. * * * Ahrens would then apply certain factors and make a determination as to what areas would be repaired or altered and how. * * * Ahren's [sic ] indicated that the general area where * * * Monson fell was considered in making his final determination because he looked at every slab of concrete in the downtown area.

The factors * * * Ahrens used in making his decision were not contained in any document or policy within the city which required action if certain factors existed and therefore, * * * Ahren's [sic ] actions were discretionary and not ministerial.

80 N.E.3d 90

As in [ Richter ], the Plaintiff here relies on [section] 3-102 of the [Act] which applies to ministerial functions rather than discretionary functions and policy determinations. As in this case, the parties in [ Richt

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