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                                    Appellate Court                        Date: 2017.05.09
                                                                           13:46:15 -05'00'




                  Krivokuca v. City of Chicago, 2017 IL App (1st) 152397



Appellate Court        MIRKO KRIVOKUCA, Plaintiff-Appellant, v. THE CITY OF
Caption                CHICAGO, a Municipal Corporation, Defendant-Appellee.



District & No.         First District, Sixth Division
                       Docket No. 1-15-2397



Filed                  February 17, 2017



Decision Under         Appeal from the Circuit Court of Cook County, No. 13-L-7598; the
Review                 Hon. John H. Ehrlich, Judge, presiding.



Judgment               Affirmed.


Counsel on             Deutschman & Associates, P.C., of Chicago (Jeffrey S. Deutschman
Appeal                 and Bradley A. Skafish, of counsel), for appellant.

                       Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth
                       Solomon, Myriam Zreczny Kasper, and Carl Newman, Assistant
                       Corporation Counsel, of counsel), for appellee.



Panel                  JUSTICE CUNNINGHAM delivered the judgment of the court, with
                       opinion.
                       Presiding Justice Hoffman and Justice Delort concurred in the
                       judgment and opinion.
                                               OPINION

¶1       In this negligence action against the defendant-appellee the City of Chicago (City),
     plaintiff-appellant Mirko Krivokuca (plaintiff) appeals from (1) the order of the circuit court
     granting the City’s motion to dismiss the second negligence count of the plaintiff’s complaint
     premised upon the doctrine of res ipsa loquitur and (2) the subsequent order granting summary
     judgment to the City with respect to the first count of the complaint asserting ordinary
     negligence. We affirm the circuit court’s orders in favor of the City.

¶2                                          BACKGROUND
¶3       On the morning of April 18, 2013, the plaintiff was driving his pickup truck near the
     intersection of 96th Street and Houston Avenue in Chicago. According to his pleadings, after
     the vehicle struck a pothole, “a sinkhole opened up in the road, causing the entire car to fall into
     the sinkhole.” At his deposition, the plaintiff testified that the ground suddenly opened up and
     the back of his vehicle sank several feet below the ground. The plaintiff called 911, and was
     transported by ambulance to a hospital, where he was treated for various injuries. His vehicle
     was later removed from the sinkhole and impounded by the City. The plaintiff claims that his
     vehicle was later destroyed by the City without providing him notice.
¶4       On July 2, 2013, the plaintiff filed his initial complaint, containing two counts. The first
     count for negligence alleged that the City was liable for, inter alia, failing to properly maintain
     the roadway and sewers near the site and “[f]ailing to repair defects *** which it knew or
     should have known posed a risk of property damage and injury” to members of the public.
¶5       Count II of the complaint was entitled “Res Ipsa Loquitur.” Count II pleaded that the City
     was liable to the plaintiff because “a sinkhole does not ordinarily open in a street in the absence
     of negligence” by the party controlling it, that the street and sewer system were under the
     exclusive control of the City, and that the plaintiff did not contribute to causing the sinkhole.
¶6       On October 3, 2013, the City filed a motion to dismiss count II of the complaint pursuant to
     section 2-619(a)(9) of the Code of Civil Procedure, which permits dismissal of a complaint
     where a claim is barred by “affirmative matter avoiding the legal effect of or defeating the
     claim.” 735 ILCS 5/2-619(a)(9) (West 2012). The City asserted that the res ipsa loquitur count
     could not be maintained in light of section 3-102(a) of the Local Governmental and
     Governmental Employees Tort Immunity Act (Act), which provides:
             “Except as otherwise provided in this Article, a local public entity has the duty to
             exercise ordinary care to maintain its property in a reasonably safe condition for the use
             in the exercise of ordinary care of people whom the entity intended and permitted to use
             the property in a manner in which and at such times as it was reasonably foreseeable
             that it would be used, and shall not be liable for injury unless it is proven that it has
             actual or constructive notice of the existence of such a condition that is not reasonably
             safe in reasonably adequate time prior to an injury to have taken measures to remedy or
             protect against such condition.” 745 ILCS 10/3-102(a) (West 2014).
¶7       The City argued that the Act’s requirement of “actual or constructive notice” of a
     dangerous condition in order to hold the City liable precluded recovery under a res ipsa
     loquitur theory. The City reasoned that res ipsa loquitur requires only two elements—that the
     occurrence would not ordinarily occur in the absence of negligence and that the defendant had


                                                  -2-
       exclusive control of the instrumentality that caused injury—but did not require prior notice of a
       dangerous condition. The City argued that a res ipsa loquitur claim could not be asserted
       against a municipal defendant, since the Act “bars premises liability claims against
       municipalities unless plaintiff can prove prior notice of a dangerous condition.”
¶8         The plaintiff filed a response to the motion to dismiss the res ipsa loquitur count on
       October 16, 2013. The plaintiff did not dispute the application of section 3-102(a) of the Act to
       his lawsuit but argued that it did not bar a res ipsa loquitur claim because the Act “did not
       impose any new duties or rights that were not available under the common law.” The plaintiff
       cited two decisions (both decided before passage of the Act) which applied the res ipsa
       loquitur doctrine against a municipal defendant. See Roberts v. City of Sterling, 22 Ill. App. 2d
       337 (1959); Bolger v. City of Chicago, 198 Ill. App. 123 (1916).1 The plaintiff acknowledged
       that these decisions predated the Act but nevertheless maintained they supported “the liability
       of municipalities based on res ipsa loquitur *** since section 3-102(a) did not change the
       common law rules relating to the right and liabilities of municipalities concerning their real
       property.” The plaintiff claimed that res ipsa loquitur applied in this case because the City had
       “complete control” and knowledge of the conditions of the street and underground structures at
       the sinkhole site, and also asserted that the City had “actual notice or constructive notice of
       such facts and circumstances as would, by the exercise of reasonable diligence, lead a prudent
       person to the knowledge that a dangerous condition existed.”
¶9         On November 12, 2013, the City filed a reply in further support of its motion to dismiss, in
       which it argued that the pre-Act decisions cited by the plaintiff did not control, and that the
       notice requirement in the Act precluded application of res ipsa loquitur.
¶ 10       On January 27, 2014, the City filed its answer to the original complaint. With that answer,
       the City asserted “statutory defenses” under section 3-102(a) of the Act that the street and
       underground structures at the site of plaintiff’s alleged injury were “reasonably safe” and that it
       lacked either actual or constructive notice of an unreasonably dangerous condition, as required
       to impose liability under section 3-102(a).
¶ 11       The record on appeal does not include a transcript from any hearing on the motion to
       dismiss. However, on January 30, 2014, the court entered an order granting the City’s motion
       and dismissing the res ipsa loquitur count (count II) with prejudice.
¶ 12       Following the dismissal the res ipsa loquitur count, the parties engaged in discovery,
       during which it was revealed that the City had repaired a water main leak in January 2013 near
       the site of the April 2013 sinkhole.
¶ 13       On August 12, 2014, the parties deposed Timothy Dowdy and John Hosty, City personnel
       who had responded to the January 2013 leak and April 2013 sinkhole, respectively.
¶ 14       Dowdy, a foreman of water pipe construction for the City, had responded to the January
       2013 leak. Dowdy testified that he had performed work near the intersection of 96th Street and
       Houston Avenue in response to a report of water percolating through a parkway. Dowdy
       observed “a small leak coming up in the grass in the parkway” south of the intersection.
       Dowdy’s crew excavated the street and parkway and accessed the water main. He found a
       “small circumference crack in the water main” which he described as “a hairline crack all the
       way around” the pipe.
          1
           Illinois Appellate Court decisions before 1935 are not precedential. North Shore Community Bank
       & Trust Co. v. Kollar, 304 Ill. App. 3d 838, 844 (1999).

                                                    -3-
¶ 15       The water main at the site had a six-inch diameter. Dowdy testified that “a minimum size
       of eight inches is used in today’s construction,” although he did not know when that change
       was made. He agreed that since the main had a six-inch diameter, it was probably an “original
       pipe” but he had “no idea” how old it was. Asked if it could be 100 years old or more, he
       answered: “it could be. I have no idea.”
¶ 16       Dowdy testified that he repaired the January 2013 leak by installing a repair clamp, which
       “goes over the entire pipe and tightens down, a watertight seal.” He testified that the leak was
       completely resolved by the clamp and that such a repair “will last forever.” Dowdy did not
       return to the site after the January 2013 repair.
¶ 17       Dowdy was shown a work order concerning the April 2013 sinkhole repair. He
       acknowledged “it could be the same water main” as the January 2013 leak but could not tell if
       the April 2013 water main break was at the same location as his January 2013 repair.
¶ 18       Dowdy testified that he is not an engineer and did not know the cause for the January 2013
       leak. Dowdy answered negatively when asked if the January 2013 leak caused the sinkhole in
       April 2013; he testified that “there was no leaking” after his repair in January 2013, and he had
       not seen anything else at that time to cause a concern.
¶ 19       John Hosty, a water pipe foreman with the City, testified that on April 18, 2013, his crew
       was dispatched to fix a broken water main at a sinkhole south of the intersection of 96th Street
       and Houston Avenue. Hosty testified that a section of approximately 20 to 30 feet of the water
       main “was just collapsed” to a lower elevation from the rest of the water main. Hosty’s crew
       replaced approximately 100 feet of the water main at the site.
¶ 20       Hosty acknowledged that the water main at the site of the sinkhole was a six-inch diameter
       main. He agreed that the six-inch diameter indicated that the water main was at least 50 years
       old, as “Most of the six inch [pipes] were before the [19]50s.” Hosty was not aware of any
       protocols used by the City to identify aging or defective pipes, or how it was decided when the
       City would replace old sections of pipe.
¶ 21       Hosty recalled that he heard his supervisors refer to a prior repair near the same location.
       Hosty recalled that, in his work on the water main in April 2013, he found the clamp that had
       been installed by Dowdy’s crew in January 2013. Hosty testified that he observed that the
       clamp was intact and in “good working order.” Hosty denied that the water main break in April
       2013 was a sign that the prior repair was not done correctly, and he stated that the crew
       performing the January 2013 repair “would have known that day” if the repair was not
       successful.
¶ 22       Hosty testified that he had been involved in replacing sections of pipe that were from
       “Before the 50’s,” but he answered negatively when asked if there is a certain age at which the
       City starts replacing pipes. Hosty testified that sinkholes were “kind of common” and can be
       caused by broken water mains. However, he testified that sinkholes may also be caused by
       “voids in sewers,” meaning a crack or hole in the sewer pipe, independent of the water main.
¶ 23       Hosty testified that at the sinkhole site in April 2013 he observed a broken sewer as well as
       a broken water main. Hosty could not tell if the broken sewer was caused by the water main
       break or vice versa. He agreed it was possible that the water main could have broken due to the
       collapsing street and sinkhole (rather than the broken main causing the sinkhole). He also
       agreed that erosion caused by heavy rain could cause a sinkhole and that it is not possible to
       know exactly what caused the April 2013 sinkhole.


                                                   -4-
¶ 24       Hosty answered negatively when asked if it was “out of the ordinary to have two water
       main breaks at essentially the same location in a period of three months.” He stated that he had
       seen this before with older sections of pipe, but it was “[n]ot very common.” Hosty did not
       know of any reason for there to be two water main breaks at the same location in January and
       April 2013, or if this was merely coincidence.
¶ 25       On September 4, 2014, the plaintiff filed an amended complaint, which realleged the
       negligence claim in count I and the res ipsa loquitur claim in count II (acknowledging that, as
       count II was previously dismissed, it was reasserted strictly for purposes of appeal). The
       amended complaint also added count III, a claim for property damage for the plaintiff’s
       vehicle.
¶ 26       The City answered the amended complaint on October 6, 2014. The City again asserted
       statutory defenses under section 3-102(a) of the Act that the street and underground structures
       at the site of the sinkhole were reasonably safe and that the City lacked actual or constructive
       notice of a dangerous condition at the site. The City’s answer also asserted “discretionary
       immunity” pursuant to section 2-201 of the Act, which provides that “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 even though abused.” 745 ILCS 10/2-201 (West 2014).
¶ 27       On March 16, 2015, the City filed a motion for summary judgment with respect to counts I
       and III of the complaint. With respect to count I for negligence, the City argued it was entitled
       to summary judgment pursuant to section 3-102(a) of the Act because it had no notice of the
       condition causing the sinkhole. Alternatively, the City argued that it was immune by operation
       of section 2-109 of the Act, which grants public entities immunity for acts for which their
       employees are not liable (745 ILCS 10/2-109 (West 2014)), in conjunction with section 2-201
       of the Act, which provides immunity for injuries resulting from acts involving the exercise of
       discretion (745 ILCS 10/2-201 (West 2014)). Separately, the City argued that it was entitled to
       summary judgment with respect to the count for property damage, based upon the plaintiff’s
       failure to exhaust administrative remedies.
¶ 28       On April 14, 2015, the plaintiff filed a response to the motion for summary judgment. In
       opposing summary judgment, the plaintiff argued “there is testimony that the infrastructure at
       the location of the sinkhole was approximately 100 years old and there is a reasonable
       inference that the water main and sewer failed due to age and deterioration.” Citing Dowdy’s
       testimony, the plaintiff argued “It is a reasonable inference that an unsafe condition of the
       water main and/or sewer developed over time that resulted in their failure and collapse” in
       April 2013. The plaintiff similarly urged that Hosty’s testimony supported “an inference that
       the sinkhole was caused by water leaking from the broken water main and/or broken sewer.”
¶ 29       With respect to the City’s position that it lacked notice of a dangerous condition pursuant to
       section 3-102(a), the plaintiff asserted that section 3-102(b) (745 ILCS 10/3-102(b) (West
       2014)) “places the burden on the public entity to show it did not have constructive notice of a
       condition of its property that was not reasonably safe by establishing either that (a) the
       condition would not have been discovered by an inspection system that was reasonably
       adequate or (b) the public entity maintained and operated such an inspection system with due
       care and did not discover the condition.” The plaintiff argued that summary judgment could
       not be granted because the City had failed to present evidence of a reasonably adequate
       inspection system.

                                                   -5-
¶ 30       The plaintiff separately argued that the provision of the Act regarding immunity for
       discretionary acts did not apply because the January 2013 repair was not an exercise of
       discretion and because “there is no evidence that the sinkhole was caused by any failure of the
       repair work performed in January 2013.”
¶ 31       On May 11, 2015, the court issued a memorandum opinion and order granting the City
       summary judgment with respect to the personal injury claims pleaded in counts I and II. In that
       order, the trial court agreed with the City that it was immune pursuant to section 3-102(a) of the
       Act, based on the lack of either actual or constructive notice of the sinkhole or its cause. The
       court noted the lack of any evidence in the record that the City had actual notice “of any
       infrastructural defects” causing the sinkhole. The court also found no evidence of constructive
       notice, finding the “January 2013 water main leak did not and could not provide the City with
       constructive notice that the water main and the sewer would crack three months later because
       the causes and locations were distinct.” The court noted Hosty’s testimony that, in April 2013,
       he observed that the clamp installed in January 2013 was intact. The court also noted that
       “Hosty could not determine if the water main and sewer breaks caused the formation of the
       hole” and that “Hosty testified that sinkholes such as this can be caused by a variety of
       reasons.”
¶ 32       The court agreed that section 3-102(a) “immunized the City from [the plaintiff’s] personal
       injury claims *** because he has failed to establish that the City had constructive notice of the
       sinkhole or the water main and sewer breaks that may have caused it.” Finding the City
       immune on this basis, the court did not discuss the City’s arguments based on sections 2-201 or
       2-109 of the Act.
¶ 33       Separately, the court denied the City’s motion for summary judgment with respect to the
       property damage claim in count III, insofar as the City had failed to previously assert, as an
       affirmative defense, that the plaintiff failed to exhaust administrative remedies.
¶ 34       Shortly after the May 11, 2015 order, the City moved for, and was granted, leave to file an
       affirmative defense to count III based on the plaintiff’s failure to exhaust administrative
       remedies. After filing that affirmative defense, on June 11, 2015, the City moved for summary
       judgment with respect to count III.
¶ 35       On July 17, 2015, the court granted the plaintiff’s motion for leave to file a second
       amended complaint, which added a fourth count pleading a negligent misrepresentation claim
       in connection with the City’s destruction of the plaintiff’s vehicle.
¶ 36       The plaintiff subsequently voluntarily dismissed counts III and IV of the second amended
       complaint. On August 19, 2015, the court entered a corresponding order stating that, as the
       court had previously dismissed counts I and II in its May 11, 2015 order, there were no
       remaining claims pending. The plaintiff filed a notice of appeal on August 20, 2015.

¶ 37                                            ANALYSIS
¶ 38       We note that we have jurisdiction as the plaintiff perfected a timely notice of appeal from
       the August 19, 2015 final order. See Ill. S. Ct. R. 303(a) (eff. Jan. 1, 2015).
¶ 39       The plaintiff’s appellate brief challenges (1) the court’s January 30, 2014, order granting
       the City’s motion to dismiss count II, which asserted a negligence claim under the theory of
       res ipsa loquitur, as well as (2) the May 11, 2015, order granting summary judgment to the
       City with respect to the negligence claim in count I.


                                                   -6-
¶ 40        We first address the propriety of the trial court’s order granting the City’s motion to
       dismiss the res ipsa loquitur count. The City’s motion to dismiss was made pursuant to section
       2-619(a)(9) of the Code of Civil Procedure, which permits dismissal where “the claim asserted
       against defendant is barred by other affirmative matter avoiding the legal effect of or defeating
       the claim.” 735 ILCS 5/2-619(a)(9) (West 2012).
¶ 41        A motion pursuant to section 2-619 of the Code of Civil Procedure “admits the legal
       sufficiency of the complaint, but asserts an affirmative defense or other matter to defeat the
       plaintiff’s claim. [Citation.]” Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003). A
       municipality’s assertion that it is immune from suit under the Act “is an affirmative matter
       properly raised in a section 2-619(a)(9) motion to dismiss. [Citation.]” Id. “Our review of a
       section 2-619 dismissal is de novo. [Citation.]” Id. at 368.
¶ 42        In granting the motion to dismiss count II of the plaintiff’s complaint, the trial court
       apparently agreed with the City’s argument that the notice requirement of the Act is
       incompatible with the elements of a claim under a res ipsa loquitur theory, and thus the Act
       precludes liability under that theory. Notably, on appeal, the City makes different arguments
       with respect to res ipsa loquitur from the argument asserted in its motion to dismiss before the
       trial court. However, we need not address these new arguments raised by the City on appeal, as
       our de novo review leads us to agree that the notice requirement of section 3-102(a) of the Act
       provided “affirmative matter” precluding the plaintiff from proceeding under a res ipsa
       loquitur theory.
¶ 43        Res ipsa loquitur, although often pleaded separately from an ordinary negligence claim, is
       not truly an independent cause of action, but rather a “rule of evidence relating to the
       sufficiency of plaintiff’s proof” to establish a defendant’s negligence. (Internal quotation
       marks omitted.) Collins v. Superior Air-Ground Ambulance Service, Inc., 338 Ill. App. 3d 812,
       816 (2003). “The res ipsa loquitur doctrine is a species of circumstantial evidence permitting
       the trier of fact to draw an inference of negligence if plaintiff demonstrates that he or she was
       injured (1) in an occurrence that ordinarily does not happen in the absence of negligence, (2) by
       an agency or instrumentality within the defendant’s exclusive control ***.” (Internal quotation
       marks omitted.) Id. The purpose of the doctrine “is to allow proof of negligence by
       circumstantial evidence when the direct evidence concerning cause of injury is primarily
       within the knowledge and control of the defendant.” (Internal quotation marks omitted.) Id.
¶ 44        However, the Act clearly requires more than such “circumstantial evidence” of the nature
       of the injury to prove a municipality’s negligence liability. The Act requires the plaintiff to
       prove that the municipality “ha[d] actual or constructive notice of the existence of such a
       condition that is not reasonably safe in reasonably adequate time prior to an injury to have
       taken measures to remedy or protect against such condition.” 745 ILCS 10/3-102(a) (West
       2014). That is, we agree with the contention raised by the City in the trial court that the
       assertion of negligence under this theory is incompatible with the notice requirement imposed
       by the Act.
¶ 45        The plaintiff cites no authority since passage of the Act describing its impact, if any, on the
       availability of res ipsa loquitur asserted against a municipal defendant. Rather, the plaintiff
       cites two pre-Act cases applying the doctrine to municipal defendants and contends that they
       are still good law, notwithstanding the Act. See Bolger, 198 Ill. App. at 127 (affirming jury
       verdict for plaintiff’s injury resulting from underground explosion because City had exclusive
       control of underground infrastructure and such an accident “ordinarily would not happen if

                                                    -7-
       those who had charge exercised proper care”); Roberts, 22 Ill. App. 2d at 355-56 (affirming
       jury verdict for injury caused by collapsing sidewalk, as the sidewalk was under the sole
       control of the city, the collapse was “such as in the ordinary course of events does not happen if
       due care has been exercised,” and the jury could reasonably find that the city had either actual
       or constructive notice of a dangerous condition). Based on these pre-Act decisions, he argues
       that the Act does not bar his assertion of a res ipsa loquitur theory against the City, because
       section 3-102(a) “merely codified existing common law duty owed by municipalities to
       maintain their property in a reasonably safe condition” and “did not impose any new duties or
       rights that were not available under the common law.”
¶ 46        It is true that our supreme court has held that “The Act does not create new duties” but
       “merely codifies those duties existing at common law[ ] to which the subsequently delineated
       immunities apply.” (Internal quotation marks omitted.) Van Meter, 207 Ill. 2d at 368.
       However, whether the Act created new municipal duties does not detract from the fact that the
       Act imposed statutory barriers to imposing liability against a public entity. As stated by our
       supreme court, “The Act serves to protect local public entities and public employees from
       liability arising from the operation of government. [Citations.] By providing immunity, the
       General Assembly sought to prevent the dissipation of public funds on damage awards in tort
       cases. [Citation.]” (Internal quotation marks omitted.) Id. As the purpose of the Act is plainly
       to limit the circumstances under which a municipality may be held liable for negligence and
       since the notice provision in section 3-102(a) of the Act imposes an additional element of proof
       that is not contemplated by the common law res ipsa loquitur doctrine, our de novo review
       leads us to conclude that the motion to dismiss count II of the complaint was properly granted.
       Plainly stated, the plaintiff did not and could not under the known facts satisfy the notice
       requirement.
¶ 47        We next turn to the trial court’s order granting summary judgment with respect to the
       negligence claim pleaded in count I. As set forth below, we find that the plaintiff failed to offer
       any evidence that the City had notice of a dangerous condition, as required to establish liability
       under section 3-102(a) of the Act. As there was no genuine materially factual issue as to the
       City’s lack of notice, we affirm the grant of summary judgment with respect to count I.
¶ 48        The applicable summary judgment standard is well-settled. “Summary judgment is
       appropriate when ‘the pleadings, depositions, and admissions on file *** show that there is no
       issue as to any material fact and that the moving party is entitled to judgment as a matter of
       law.’ [Citation.] We review a ruling on summary judgment de novo.” Zameer v. City of
       Chicago, 2013 IL App (1st) 120198, ¶ 12. “Summary judgment is a drastic measure and should
       only be granted if the movant’s right to judgment is clear and free from doubt. [Citation.]
       Where a reasonable person could draw divergent inferences from undisputed facts, summary
       judgment should be denied. [Citations.]” Id. ¶ 13.
¶ 49        The City’s motion for summary judgment was premised upon section 3-102(a) of the Act,
       which provides, in relevant part, that a public entity “shall not be liable for injury unless it is
       proven that it has actual or constructive notice of the existence of such a condition that is not
       reasonably safe in reasonably adequate time prior to an injury to have taken measures to
       remedy or protect against such condition.” 745 ILCS 10/3-102(a) (West 2014).
¶ 50        “Constructive notice under section 3-102(a) of the Act is established where a condition has
       existed for such a length of time, or was so conspicuous, that authorities exercising reasonable
       care and diligence might have known of it. [Citations.] The burden of proving notice is on the

                                                    -8-
       party charging it.” (Internal quotation marks omitted.) Burke v. Grillo, 227 Ill. App. 3d 9, 18
       (1992). Moreover, we have held that “Section 3-102(a) requires proof that the defendant had
       timely notice of the specific defect that caused the plaintiff’s injuries, not merely the condition
       of the area.” Zameer, 2013 IL App (1st) 120198, ¶ 16. Thus, in this case, the plaintiff bears the
       burden of proving that the City had at least constructive notice of a specific condition that was
       not reasonably safe.
¶ 51       In applying section 3-102(a), “[t]he question of notice is generally one of fact, but it
       becomes a question of law if all the evidence when viewed in the light most favorable to the
       plaintiff so overwhelmingly favors the defendant public entity that no contrary verdict could
       ever stand. [Citations.]” Id. ¶ 14. Summary judgment is appropriate when the plaintiff “fail[s]
       to meet [his] burden to provide facts showing that the City had constructive notice” and there is
       “no genuine issue of material fact *** regarding constructive notice.” Burke, 227 Ill. App. 3d
       at 18, 19 (affirming summary judgment for City where plaintiff tripped on hole in sidewalk but
       there was “no evidence that the hole was plainly visible or that it was apparent for a long time
       prior to the injury”); see also Zameer, 2013 IL App (1st) 120198, ¶¶ 22, 24 (affirming
       summary judgment where plaintiff “has not presented evidence that would raise an issue of
       material fact as to the length of time the defect existed” and “failed to meet her burden to
       provide facts showing that the city had constructive notice of the condition”).
¶ 52       Even viewing the record in this case in the light most favorable to the plaintiff, we find that
       there is simply no evidence whatsoever that the City had actual or constructive notice of a
       dangerous condition that allegedly caused the sinkhole. Because the plaintiff could not meet
       this requirement of the Act, summary judgment in favor of the City was appropriate.
¶ 53       On appeal, the plaintiff does not attempt to argue that there was any evidence of actual
       notice of a dangerous condition leading to the April 2013 sinkhole. Rather, the plaintiff asserts
       that there is a genuine issue of fact on the question of constructive notice. Relying solely on the
       deposition testimony of Dowdy and Hosty, the plaintiff on appeal asserts that the City had
       constructive notice of a dangerous condition, namely, the “aged and deteriorated condition of
       the infrastructure leading to failure and collapse of the water main and/or sewer, and thus the
       creation of the sinkhole.”
¶ 54       Specifically, the plaintiff cites Dowdy’s testimony that the six-inch water main “could be”
       100 years old, as well as Hosty’s testimony that a six-inch main indicates it was installed
       before the 1950s. The plaintiff also cites Hosty’s testimony that it is “not very common” to
       have two water main breaks at the same location within a three month period but that he has
       seen this occur with older sections of pipe. The plaintiff also relies on Hosty’s testimony that a
       broken water main is one possible cause of a sinkhole and that he did not know of any City
       protocol to identify aging or defective pipe.
¶ 55       The plaintiff argues that such testimony raises a genuine issue of material fact as to the
       City’s constructive notice of “the aged and deteriorated condition of the infrastructure leading
       to failure and collapse of the water main and/or sewer, and thus the creation of the sinkhole.”
       The plaintiff argues that the testimony of Dowdy and Hosty indicate that the City “knew that
       the infrastructure in the area in question was aged and deteriorated.” The plaintiff’s reply brief
       argues that Dowdy and Hosty’s testimony was “not merely evidence that the infrastructure at
       the location of the sinkhole was old, but evidence that [the City] knew or should have known
       that the infrastructure at that location was deteriorated and defective and knew that an unsafe
       condition existed that would cause a washout or sinkhole.”

                                                    -9-
¶ 56       The plaintiff’s argument suggests that, based on the testimony regarding the age of the
       pipe, an inference can be made that the City was on notice of a dangerous condition. We
       disagree. At most, Hosty’s and Dowdy’s testimony suggested that the water main was old and
       that a water main break is one potential cause of a sinkhole. There was simply no testimony
       describing the water main as “deteriorated” or suggesting that the City had notice of such
       deterioration. Further, there was no testimony that the age of the water main makes it per se
       deteriorated so as to automatically make it a dangerous condition.
¶ 57       Apparently, the plaintiff expects us to assume, without expert testimony, that old pipes
       constitute a dangerous condition so as to meet the constructive notice requirement. However,
       there is absolutely nothing in the record to support that premise as a general matter or to
       suggest that this particular pipe was deteriorated prior to formation of the sinkhole. Notably,
       the plaintiff could have, but did not, elicit testimony (including expert opinions) concerning the
       relationship between the water main’s age, deterioration, and any corresponding likelihood of
       sinkholes. Further, even assuming that an older pipe is generally more susceptible to
       deterioration, there was no evidence that the City had constructive notice of the “specific
       defect that caused the plaintiff’s injuries.” Zameer, 2013 IL App (1st) 120198, ¶ 16.
¶ 58       Thus, we reject the suggestion that Hosty’s and Dowdy’s testimony created a material
       issue of fact as to whether the City had constructive notice of a dangerous condition that caused
       the sinkhole. As the plaintiff could not meet this requirement to establish the City’s liability
       under section 3-102(a) of the Act, summary judgment was warranted.
¶ 59       Notably, the plaintiff’s briefing also discusses section 3-102(b) of the Act, which provides:
               “A public entity does not have constructive notice of a condition *** within the
               meaning of Section 3-102(a) if it establishes either:
                    (1) The existence of the condition and its character of not being reasonably safe
               would not have been discovered by an inspection system that was reasonably adequate
               ***; or
                    (2) The public entity maintained and operated such an inspection system with due
               care and did not discover the condition.” 745 ILCS 10/3-102(b) (West 2014).
       The plaintiff argues that the City offered no evidence of a “reasonably adequate inspection
       system” to demonstrate that it lacked constructive notice pursuant to section 3-102(b). While
       this may be the case, it is simply irrelevant in light of the plaintiff’s failure to elicit proof of
       notice under section 3-102(a).
¶ 60       That is, although section 3-102(b) describes circumstances by which the defendant may
       prove its lack of constructive notice, it does not relieve the plaintiff of the initial burden,
       codified in section 3-102(a), of proving the defendant’s actual or constructive notice. As
       discussed, the testimony relied on by the plaintiff in this case did not offer any proof of such
       requisite notice. Thus, section 3-102(a) shields the City from liability, regardless of whether
       the City proved a reasonably adequate inspection system pursuant to section 3-102(b).
¶ 61       For the foregoing reasons, we find that the plaintiff failed to present a genuine issue of
       material fact as to whether the City had actual or constructive notice of a dangerous condition
       within the meaning of section 3-102(a). As the plaintiff failed to offer any evidence that could
       meet this statutory prerequisite, summary judgment was properly granted in favor of the City
       with respect to the negligence claim pleaded in count I.



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¶ 62   For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 63   Affirmed.




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