Monson v. City of Danville, Docket No. 122486

• Citation: 115 N.E.3d 81,425 Ill.Dec. 526,2018 IL 122486
• Decision Date: 02 August 2018
• Docket Number: Docket No. 122486
• Parties: Barbara MONSON, Appellant, v. The CITY OF DANVILLE, Appellee.
• Court: Supreme Court of Illinois

2018 IL 122486
115 N.E.3d 81
425 Ill.Dec. 526

Barbara MONSON, Appellant,
v.
The CITY OF DANVILLE, Appellee.

Docket No. 122486

Supreme Court of Illinois.

Opinion filed August 2, 2018
Rehearing denied September 24, 2018

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

425 Ill.Dec. 530

¶ 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, 414 Ill.Dec. 354, 80 N.E.3d 87. 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,

425 Ill.Dec. 531

115 N.E.3d 86

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, 414 Ill.Dec. 354, 80 N.E.3d 87. The court held section 3-102(a) does not supersede the immunity in section 2-201. Id. ¶ 30. The court further held

425 Ill.Dec. 532

115 N.E.3d 87

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, 284 Ill.Dec. 302, 809 N.E.2d 1248 (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, 330 Ill.Dec. 720, 909 N.E.2d 742 (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, 284 Ill.Dec. 302, 809 N.E.2d 1248. 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, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993). We review the trial court's summary judgment ruling de novo . Barnett v. Zion Park District , 171 Ill. 2d 378, 385, 216 Ill.Dec. 550, 665 N.E.2d 808 (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, 247 Ill.Dec. 473, 732 N.E.2d 528 (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, 324 Ill.Dec. 446, 896 N.E.2d 232 (2008) ; Barnett , 171 Ill. 2d at 385, 216 Ill.Dec. 550, 665 N.E.2d 808. Our primary objective in interpreting a statute is to ascertain and give effect to the...