Tag Archives: Tort Immunity Act

Harden v. City of Chicago – City not liable for pedestrian fall that was outside of marked crosswalk despite her claim that lines were not visible due to snow

Harden v. City of Chicago, 2013 IL App (1st) 120846 (McBride)

Facts:  Plaintiff was injured while crossing the street when she stepped on a metal plate that had been placed over the road due to construction on Wacker Drive and Adams Street.  Plaintiff admitted in her deposition that she stepped off the curb in the area in-between the stop line and the crosswalk and the photo of the metal plate showed that the area of her fall was three feet outside of the marked lines of the crosswalk.  Defendant moved for summary judgment on the basis the plaintiff was not an intended and permitted user of the road at that location and pursuant to section 3-102 of the Tort Immunity Act the defendant owed no duty to plaintiff.  Plaintiff argued that due to the lack of visibility of the lines and the forgeability that pedestrians would cross in that location, the definition of a crosswalk should be broadened to include the area of the fall as an unmarked crosswalk.  The trial court granted the defendant motion for summary judgment and plaintiff appeals.

Holding:  Summary judgment was proper because plaintiff fell outside of the marked crosswalk lines and was not an intended and permitted user of the roadway despite her claim that the crosswalk lines were not visible due to snow.

Filed in Trial Book Under:  Section 3-102 of the Tort Immunity Act, Intended and Permitted User, Crosswalk

Commentary:  It is the intent of the municipality that dictates whether a pedestrian is an intended or permitted user or not.  Here, there was a marked crosswalk so the intent of the municipality was clear and any fall outside of the marked lines was not actionable.  The case has a great discussion of most of the major cases on the issue.

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Betts v. City of Chicago – Trial court was too restrictive on discovery allowed to plaintiff to respond to motion to dismiss

Betts v. City of Chicago, 2013 IL App (1st) 123653 (McBride)

Facts:  Plaintiff was injured in her parked car when an undercover police officer backed into her vehicle while he was trying to pull out of his parking space while on duty in an undercover surveillance.  Defendant presented a motion to dismiss on the basis that section 2-202 of the Tort Immunity Act immunized the officer from a negligence suit because he was in the execution and enforcement of the law at the time of the collision.  Defendant produced an affidavit that merely concluded that the officer was on duty and “in the scope of his duties” at the time of the incident.  The plaintiff requested a limited discovery deposition to develop facts detailing what the officer was actually doing at the time of the occurrence, but the trial court denied the request and instead permitted 5 interrogatories to be submitted to the defendant.  The defendants answers to interrogatories described his activity as conducting surveillance pursuant to a narcotics investigation but, as plaintiff argued, were equivocal and unclear on the specific activities that were underway to determine whether it met threshold for execution and enforcement of the law. The trial court granted defendant’s motion to dismiss based solely upon the affidavit and answers to interrogatories and plaintiff appeals.

Holding:  Trial court lacked sufficient facts to support defendant’s claim that officer was engaged in the execution and enforcement of the law at the time of the accident and plaintiff was entitled to additional discovery to determine whether the Tort Immunity Act applied.

Filed in Trial Book Under:  Tort Immunity – Section 2-202, Execution and Enforcement of Law, Affidavit, SCR 191, 735 ILCS 5/2-619

Commentary:  Although it does not reach any conclusions relating to the facts present in this case, the opinion has a pretty good summary of cases interpreting the law on execution and enforcement of the law.  Not everything that an officer does while on duty is worthy of immunity and the appellate court needs sufficient facts to make a determination of whether the immunity applies or not.  The affidavit provided by the defendant was conclusory in nature and therefore violated SCR 191 and was not considered.  The interrogatory answers provided were equivocal and the appellate court was not able to determine exactly what the officer was doing at the time he backed his vehicle up so they reversed the trial courts dismissal and remanded the case for further development of facts on the issue.  Clearly, a deposition would be the easiest way to ferret out this issue and I’m not sure why the trial court was reluctant to permit it to go forward in the first place.  I have never had a judge not permit a deposition of an affiant on a motion to dismiss, but in the event that happens some time in the future this will be a good case to provide to the court to try to convince them to reconsider.

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Filed under Civil Procedure, Tort Immunity

Bielema v. River Bend Community School District No. 2 – Summary Judgment in Favor of School District for Child’s Fall in School Gymnasium Affirmed

Bielema v. River Bend School District No. 2, 2013 IL App (3d) 120808 (McDade)

Facts:  The plaintiff was injured when she slipped on spilled Gatorade in a school gymnasium after an evening sporting event.  Just prior to the fall, the school principal had noticed the spill and requested her husband to “stand guard” while she went to get materials to clean it up.  The husband got distracted with a conversation and failed to warn the plaintiff as she approached the area of the spill.  The trial court determined that the facts did not rise to the statutory definition of willful and wanton conduct and granted summary judgment.  Plaintiff appealed.

Holding:  The statutory definition, not the common law definition, of willful and wanton conduct applies to cases involving tort immunity and the plaintiff did not allege facts that would establish willful and wanton conduct on behalf of the school, particularly when the evidence revealed that the principal was actively taking steps to remove the danger.

Filed in Trial Book Under:  Willful and Wanton; School Immunity, Tort Immunity

Commentary:  With the requirement to prove willful and wanton conduct, this doesn’t appear to be a very strong case for the plaintiff and the result here is not surprising.  A negligence case could certainly be established so long as the husband was deemed an agent of the school (which he should be), but willful and wanton conduct is another story altogether.  The more significant aspect of the opinion is the rejection of an argument by the plaintiff to apply a definition of willful and wanton conduct found in a common law case, rather than the statutory definition found in 745 ILCS 10/1-210.  The First District has already reached this conclusion in Tagliere v. Western Springs Park District, as has the Fourth District in Thurman v. Champaign Park District.  None of the definitions of willful and wanton conduct that I have seen make the burden of proof very easy, but I could see how some of the common law definitions from cases could have subtle differences in language that make some definitions appear easier to prove than others.  The Supreme Court in Harris v. Thompson has recently held that the statutory definition of willful and wanton conduct is “entirely consistent with this court’s long standing case law”, but these cases seem to be trying to close the door on using an alternative definition and make pretty clear that it should only be taken from the statute.  It’s good to keep this mind when responding to a motion to dismiss on these grounds.

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Harris v.Thompson – Illinois Supreme Court Finds That Public Ambulance Driver is Immune from Negligence Count Despite Conflict Between Tort Immunity Act and Illinois Vehicle Code, Overruling 5th District Bradshaw Case

Thompson v. Harris, 2012 IL 112525 (Freeman)

Facts:  Plaintiff is injured in a collision with an ambulance that was transporting a patient from a nursing home to a hospital when the ambulance went through a controlled intersection against his signal.  The defendant claims that he had his lights on and slowed to 10 mph and blasted the siren a few times before entering the intersection.  Plaintiff claimed that he was going at least 40 mph at the time of the collision.  Plaintiff plead both a negligence count and a willful and wanton count against the driver and his employer, Massac County Hospital District, a public agency.  The defendant’s motion to dismiss the negligence count pursuant to section 10-101 of the Tort Immunity Act was denied by the trial court.  At the trial, the trial court directed a verdict on the issue of willdul and wanton but permitted the negligence count to proceed to the jury.  The jury found in favor of the plaintiff and awarded $665,000 in damages.  The defendant appealed the verdict arguing that the Tort Immunity Act barred any claim against the ambulance driver for negligence.  Relying upon the Fifth District case of Bradshaw v. City of Metropolis, 293 Ill.App.3d 389 (1997), whic held that the Illinois Vehicle Code and Tort Immunity Acts were in conflict and that the Illinois Vehicle Code, which imposes a duty on an emergency vehicle to refrain from negligence, serves to abrogate the Tort Immunity Act, the Fifth District appellate court affirmed the verdict.  The Defendant appealed to the Illinois Supreme Court.

Holding:  (1) The Illinois Vehicle Code does not abrogate the Tort Immunity Act and the driver of a public ambulance is not liable for negligence, only willful and wanton conduct, (2) the holding in this case applies both retroactively and prospectively, and (3) there was insufficient evidence to sustain an allegation of willful and wanton conduct against the driver of the ambulance and the trial court’s directed verdict on that issue was proper.

Filed In Trial Book Under:  Tort Immunity – Emergency Call; Willful and Wanton Conduct; Statutory Interpretation; Directed Verdict

Commentary:  Personally, I agree with the Kilbride dissent in this case and feel that the Bradshaw case was sound.  However, with that said, the Bradshaw case was an anomaly and none of the other districts followed its reasoning, so it’s not too surprising to see the Supreme Court step in and eliminate any confusion from this outlier case.  Referencing the prior Supreme Court opinions, Henrich v. Libertyville High School, 186 Ill.2d 381 (1998), the court states:

“A court must construe statutes relating to the same subject matter with reference to one another so as to give effect to the provisions of each, if reasonable. Henrich, 186 Ill. 2d at 391-92. Sections 11-205 and 11-907 of the Vehicle Code provide certain privileges both to public and private employees who operate emergency vehicles. In contrast, the Tort Immunity Act does not apply to private employees, but provides immunity only to public employees absent willful and wanton conduct. Therefore, these sections of the Vehicle Code do not abrogate the Tort Immunity Act. See Sanders, 306 Ill. App. 3d at 363; Carter, 304 Ill. App. 3d at 450. Under the plain language of section 5-106 of the Tort Immunity Act, the legislature has chosen to grant immunity from negligence liability to public employees like Thompson. See Young, 308 Ill. App. 3d at 560. For the foregoing reasons, Bradshaw v. City of Metropolis, 293 Ill. App. 3d 389 (1997), is hereby overruled.”

The reasoning for the second holding, to apply the case both retroactively and prospectively is sound.  The first prong of the three-factor analysis adopted from Chevron Oil v. Huson, 404 U.S. 97, 106-107 (1971), see Aleckson v. Village of Round Lake park, 176 Ill.2d 82, 87-91 (1997), requires that the decision must establish a new rule of law, either by overruling clear past precedent on which litigants have relied, or by deciding an issue of first impression where the resolution was not clearly foreshadowed.  This case simply doesn’t meet the first requirement.  As an attorney practicing primarily in the First District, where Sanders v. City of Chicago, 306 Ill.App.3d 356 (1999) rejected the Bradshaw logic in 1999, it seems as if the Fifth District had it good for a long time.  As the opinion states, “Bradshaw was hardly clear precedent.”

The third holding on willful and wanton conduct was a bit disappointing, given the de novo analysis.  The court is supposed to view the evidence in the light most favorable to the plaintiff.  In this case, the defendant claimed that he entered the intersection at 10 mph with his lights on and “blasted” his siren from 100 feet away prior to entering the intersection.  The plaintiff, on the other hand, did not testify to hearing the siren or seeing the lights and testified that the ambulance was traveling approximately 40 mph.  A vehicle going 40 mph would travel 60 feet per second, and be in the intersection less than 1.5 seconds from the alleged “blasting of the siren”, which is less time than a reasonable driver would have to react and stop if they were traveling the speed limit towards the intersection.  There is a lot of conflict between this testimony.  In short, I feel that entering an urban intersection at 40 mph against the traffic control device, particularly when there was the visual obstruction that made the intersection blind as explained by the ambulance driver, is certainly beyond mere negligence and reaches a reckless disregard for the safety of others.  The fact that this case could be manipulated in the future to argue that this conduct is appropriate as a matter of law is potentially troublesome.

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Filed under Statutory Interpretation, Tort Immunity, Willful & Wanton

Warning v. The City of Joliet – Municipality Has No Duty to Light the Crosswalk and Had No Constructive or Actual Notice of Outages

Warning v. The City of Joliet, 2012 IL App (3d) 110309, Lytton.

Facts:  Plaintiff’s decedent was struck and killed by a vehicle while crossing the street in a crosswalk.  The Estate filed suit against the municipality alleging that the City failed to (1) maintain the street lamps on the street, (2) warn of the inoperative streetlamps near the crosswalk, (3) make a reasonable insection of the crosswalk, and (4) have or follow procedures for the inspection of street lamps at crosswalks.  The evidence and testimony established that the streetlamp closest the intersection was inoperable on the night of the occurrence and before, but no witness could establish for how long, that the streetlamp was owned by ComEd and not the City, that the City had received no complaints of inoperable lights at the location of the collision, that the crosswalk had been repainted prior to the occurrence and was given markings with higher visibility that required by the Manual of Uniform Traffic Control Devices, and that the crosswalk signage, although not compliant with current requirement of the MUTCD, met the standards at the time it was installed.  The trial court granted the defendant’s motion for directed verdict and plaintiff appealed.

Holding:  A verdict was properly directed for defendant since the city had no duty of reasonable care to light the crosswalk and there was no evidence of actual or constructive notice that the streetlights were not operating or that it failed to properly inspect the crosswalk.

Filed in Trial Book Under:  Motor Vehicle, Tort Immunity, Streetlights, Crosswalks, Directed Verdict, Supreme Court Rule 213(f)(3)

Commentary:  None of the logs maintained by the City for citizen complaints were able to establish that there was any complaint about inoperable lights at the location of the occurrence so the plaintiff was not able to establish actual notice of the inoperable lights to the City.  The plaintiff seemed to get some pretty good testimony from witnesses regarding the lighting conditions at the location and that there were often inoperable lights, but simply was not able to fix the length of time or exact location of these inoperable lights sufficient to establish constructive notice.  Therefore, plaintiff was unable to prevail and the directed verdict was proper.  The bigger issue here was that the light in question was owned by ComEd and not the City, and was installed initially to illuminate the roadway and not the crosswalk.  The City has no duty to light its streets and is only liable if it undertakes to light the streets and does so in an insufficient or inadequate manner.  See Greene v. City of Chicago, 73 Ill.2d 100 (1978).  Because the City had never undertaken to provide any illumination for the crosswalk, the absence of light there on the date of the occurrence was not a basis for liability and there was no duty placed upon the City.  There was also a side issue with a last minute expert that was disclosed by plaintiff just prior to trial that the trial court barred from testifying pursuant to Supreme Court Rule 213(f)(3).  The expert was disclosed 3 weeks prior to trial, but without any initial supporting documentation, which was then supplemented just days prior to trial.  It seems like a no brainer to me that this expert was barred as untimely.

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Sexton v. City of Chicago – Plaintiff’s Verdict of $5 Million Taken Away on Judgment N.O.V. Based Upon Section 104 of Tort Immunity

Swain v. City of Chicago, 2012 IL App (1st) 100010, Fitzgerald Smith

Facts:  After making a right turn from intersection plaintiff travels over a set of train tracks that ran parallel to the street and is struck and killed by a Metra train.  Plaintiff files suit against the City of Chicago alleging negligence in the failure to include certain warnings and signals relating to the dangers of this particular intersection.  The jury returned a verdict in favor of the Plaintiff for $5 million.  Defendant moved for judgment n.o.v. arguing that (1) section 30104 of the Tort Immunity Act immunized defendant from liability, (2) that the plaintiff’s claim for negligence in the design of the preemption system at this intersection was barred by the 10 year statute of repose and (3) the exclusive remedy provision of the Workers Compensation Act barred recovery.  The trial court granted the defendants motion and held that section 3-104 of the Tort Immunity Act barred recovery because the City was immune from liability for failing to install traffic signals at the intersection.  Plaintiff appealed the trial court’s judgment n.o.v.

Holding:  Because the plaintiff’s allegations of negligence were based upon its failure to install certain special warnings and signals the City was immune from liability pursuant to section 3-104 of the Tort Immunity Act.

Filed in Trial Book Under:  Tort Immunity Act – Section 3-104, Judgment N.O.V.

Commentary:  This was an interesting case and shows what I believe to be a continuing trend in the appellate court towards finding immunity for municipalities.  Section 3-104 provides immunity to a municipality for the failure to initially install signals and signs, but once the municipality has undertaken to do so, it must exercise reasonable care.  In this case, there were signs and signals installed at the intersection so the case turned on how broadly to interpret the City’s duty in that regard.  The plaintiff sought a broad interpretation and viewed the safety warnings and signals as a whole, such that once there were signals there, then the failure to have the appropriate types and at certain locations was sufficient to confer liability on the defendant.  The City, on the other hand, took a more narrow view of the duty and argued that it could only be liable for the signs and signals that it had already installed, not a wish list of signs or signals proposed by the plaintiff and its expert.  In support of its argument, the plaintiff submitted evidence that the City had made improvements to the traffic control system at the intersection by adding a “stop here on red” sign and also a new stop line in 1996, and also a 1999 memo from IDOT that the intersection should have certain other signs and signals which was disregarded by the City.  In the plaintiff’s view, the correct one in my opinion, the signs and signals comprising the traffic control system at this intersection only works as a whole and should not be viewed piecemeal and in a vacuum.  Unfortunately, the appellate court took a more narrow view and held that the City had a duty only over those signs that it had actually installed but not to install additional special warning devices.  In doing so, the court specifically rejected plaintiff’s argument that the 1999 memo that set forth the safety deficiencies at the intersection was not a basis of liability because section 3-104, unlike other sections of the Act, makes no exception to the immunity on the basis of actual or constructive notice of a danger.

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