This edition of Ready For The Defense discusses the First District Appellate Court decision in Cosovic v. Village of Skokie, 2022 IL App (1st) 0696U, affirming the circuit court’s order granting the Village of Skokie’s motion to dismiss arising from an accident at an intersection Plaintiff alleged was obstructed by trees and branches which Skokie failed to maintain.
Plaintiff’s complaint alleged that Defendant Skokie acted with willful and malicious disregard to Plaintiff’s safety for its failure to:
(1) properly remedy an unsafe condition;
(2) supervise, inspect the intersection and maintain the intersection in a safe condition;
(3) warn the public of the unsafe conditions;
(4) maintain upkeep of areas surrounding traffic control signs and other devises meant to prevent injury in violation of 745 ILCS 10/3-102 and Sections 90-42 and 90-43 of the Municipal Code of the Village of Skokie; and
(5) carelessly and negligently permitted trees to obstruct the view of drivers so as to create a dangerous condition likely to cause injury, in violation of the same state and municipal laws. Id.
THE TORT IMMUNITY ACT IS A DEFENSE FOR PUBLIC ENTITIES, NOT A SOURCE OF LIABILITY
Under 745 ILCS 10/ 1-101.1(a), “the legislature specifically provides that the purpose of the Act is to protect public employees from liability arising from the operation of government and the Act “grants only immunities and defenses.” 745 ILCS 10/ 1–101.1 (West 2004). The Act serves as an affirmative defense for public entities. If the act were to create additional liability for such entities, it would be counterproductive to its purpose. Accordingly, the appellate court found that the Act could only serve as an affirmative defense for Skokie, not a basis for its liability, as argued by Plaintiff.
Additionally, Plaintiff’s complaint fails to plead any facts to satisfy the notice requirement of section 3-102(a) of the Tort Immunity Act.
Notice is a mandatory and absolute element of plaintiff’s case to be pled and proven. § 3-102(a) of the Tort Immunity Act provides specifically that a public entity “shall not be liable for injury unless it is proven that it has actual or constructive notice” of a condition in “reasonably adequate time prior to an injury to have taken measures to remedy” it. (745 ILCS § 10/3-102(a)).
A public entity must have had notice of a defective condition of its property before the accident so as to be able to remedy the condition in order for plaintiff to plead and prove a prima facie case. A local public entity cannot be liable for a defect on its property absent notice by virtue of § 3-102(a) of the Tort Immunity Act (745 ILCS 10/3-102(a)).
In this case, Plaintiff did not contend that Skokie had actual notice of the condition, but instead, argued that Skokie had constructive notice of a dangerous condition based upon seven crash reports between 2013 and 2018. Cosovic v. Village of Skokie, 2022 IL App (1st) 0696U. If a condition exists for a long enough period of time that the public entity should have known about the condition through reasonable care and diligence, it is found to have constructive notice of the condition. Mtengule v. City of Chicago ̧ 257 Ill.App.3d 323, 328-29 (1st Dist. 1993).
Plaintiff failed to allege that the seven accidents were at the specific intersection or that they were even caused by the trees obstructing the intersection, in general. Cosovic v. Village of Skokie, 2022 IL App (1st) 0696U. The pleading and proof of notice must be notice of the precise, exact and particular defect involved in the accident. It is not sufficient to plead and prove notice of a similar defective condition at another time at another location. That is, general knowledge of an unlevel sidewalk on one street is not notice of an unlevel sidewalk on another, different street. Burlingame v. Chicago Park District, 293 Ill. App. 3d 931, 689 N.E. 2d 234 (1st Dist. 1997) (3 trip and fall accidents on sidewalk 300 ft., several hundred ft., and 75 ft. from accident fall not notice of prior accident on same condition to give notice and constitute wilful & wanton conduct) (1 inch height variation in walk not negligence, let alone willful & wanton conduct); Pinto v. DeMunnick, 168 Ill. App. 3d 771, 523 N.E. 2d 47 (1st Dist. 1988) (village’s knowledge generally that sinkholes have occurred on parkways not notice of the sinkhole involved in accident).
Additionally, seven accidents over the course of five years was not sufficient actual or constructive notice of a hazardous condition related to trees obstructing views at the intersection. Cosovic v. Village of Skokie, 2022 IL App (1st) 0696U. Plaintiff failed to plead that the specific condition which caused her accident was also the cause of the seven accidents from the traffic reports. From what the court was left to surmise, the seven accidents could have been caused by driver error.
DISCRETIONARY IMMUNITY UNDER 2-201
Having failed to sufficiently plead notice, Plaintiff’s complaint is also barred under Skokie’s absolute immunity for discretionary decisions maintaining property. Id. Local government is called upon daily to make policy decisions and exercise discretion in matters where the law sets no prescribed method for performing. Section 2-201, discretionary immunity or judgment-call immunity, of the Tort Immunity Act (745 ILCS 10/2-201) shields public officials and employees from liability from claims arising from those discretionary calls and decisions. Section 2-201 discretionary immunity under the Tort Immunity Act provides as follows:
2-201. Determination of Policy or Exercise of Discretion
§ 2-201. 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 (745 ILCS 10/2-201).
Discretionary acts are “those which are unique to a particular public office, while ministerial acts are those which a person performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal authority, and without reference to the official's discretion as to the propriety of the act.” Snyder v. Curran Township, 167 Ill.2d 466, 473 (1995).
In this case, the appellate court agreed that policies involving the inspection and maintenance of trees and the procedure for responding to accidents related to trees fell within the scope of discretionary acts and discretionary immunity properly applied.
Affidavit of Village Forester
The Village Forester also provided an affidavit identifying the inspection procedures that the Village had in place related to accidents involving street obstructions. Id. The Village Forester further stated “that the publicly owned land containing the stop sign at the intersection in question was not obstructed by any trees, bushes, or foliage and there was nothing for the Forestry Department to maintain in order to ensure visibility of the stop sign.” Id. Plaintiff failed to plead otherwise.
The Forestry Department receives police reports related to incidents involving the condition of trees or forestry as they may be related to or the cause of an accident. Id. The Village Forester additionally stated that she had not received any reports related to the intersection at issue in this matter. Again, Plaintiff failed to plead that Skokie had sufficient notice of a problem at the intersection. When facts alleged in an affidavit are not contradicted, they are accepted as true for the purposes of a motion to dismiss. Antler v. Classic Residence Management Ltd. Partnership, 315 Ill.App.3d 259, 267 (1st Dist. 2000). In this case, Plaintiff’s failure to contest the Village Forester’s affidavit or plead otherwise, left the court to accept the Village Forester’s affidavit as true.
Conclusion
Accepting all well-plead facts as true under the motion to dismiss standard, the appellate court agreed with the circuit court that Plaintiff failed to state a valid cause of action. Additionally, the appellate court agreed that the Tort Immunity Act could not be a basis for Plaintiff’s cause of action. Therefore, the appellate court affirmed the circuit court’s dismissal of Plaintiff’s complaint.
Commentaires