
30 September 1999

NO. 
4-98-1015



IN THE APPELLATE COURT



OF ILLINOIS



FOURTH DISTRICT



IRENE BERNAL, 						)	Appeal from

Plaintiff-Appellant,		)	Circuit Court of

v.						)	Vermilion County

THE CITY OF HOOPESTON,				)	No. 97L79

Defendant-Appellee.			)

)	Honorable

)	Thomas J. Fahey,

)	Judge Presiding.

_________________________________________________________________

PRESIDING JUSTICE KNECHT delivered the opinion of the court:

In February 1998, plaintiff, Irene Bernal, filed a fourth-amended complaint against defendant, City of Hoopeston (City), after fall­ing into a water meter pit and in­jur­ing her leg, knee, hip, and back.  In November 1998, the trial court granted defendant's mo­tion for sum­ma­ry judg­ment, finding defen­

dant immune from lia­bili­ty under sec­tion 3-102 of the Local Gov­

ernmental and Govern­mental Employ­ees Tort Immu­nity Act (Act) (745 ILCS 10/3-102 (West 1994)).  
Plaintiff appeals, arguing (1) the Act does not apply where plaintiff's injuries arose from a municipality's af­fir­ma­tive act; (2) the trial court erred in denying plaintiff's motion to strike para­graphs from the water superintendent's affidavit; and (3) summary judgment was improper due to existing questions of fact.  We reverse and remand.

I. BACKGROUND

According to plaintiff's affidavit, in June 1995 plain­

tiff and her family moved into a new residence located in Hoopeston, Illi­nois.  Around midnight on the day she moved, plaintiff left the house and walked to her car.  On her way to the car, plain­tiff alleges she fell into a water meter pit.  During a dis­cov­ery depo­si­tion, plaintiff stat­ed she stepped on the cover and it came off, causing her entire leg to fall into the hole, in­jur­ing her knee, hip, and back.  Plain­tiff fur­ther stated she went to the hos­pital and doc­tors told her she suffered a sprained knee and hip.  Plaintiff also stated she re­ceived treat­ment for sever­al months and still suf­fers pain in her hip and back.  Fi­nally, plaintiff stat­ed she cannot kneel or squat, sit for long peri­ods, or lift heavy ob­jects.

Plaintiff's brother filed an affidavit stating he in­

spected the water meter pit's cover.  He averred the cover did not ap­pear bro­ken.  The affidavit further stated "it appeared the cover could only have come loose if it had not been prop­erly fas­

tened to the open­ing."

In February 1998, plaintiff filed a fourth-amended com­

plaint al­leging the City at­tached the cover in a negli­gent or inef­fective manner.  Plaintiff's com­plaint further alleged neg­li­

gent conduct should be in­ferred inas­much as the City had sole access to the type of tool nec­essary to re­move the cover and because the cover showed no evi­dence of dam­age due to forc­ible re­moval or loosen­ing.

In September 1998, defendant filed a motion for summary judg­ment.  In support of its motion, defendant submitted an affi­

da­vit from the City's water superinten­dent, Stephen Baker.  In paragraph 9, the affidavit stat­ed City em­ploy­ees properly fas­

tened the cover after taking the most re­cent meter reading.  In paragraph 11, the affidavit stated the City received no notice of the cover's al­leged dangerous condition.

In October 1998, plaintiff moved to strike paragraphs 9 and 11 from Baker's affidavit.  Plaintiff argued the affidavit pro­vided no foundational basis for paragraph 9, making it conclusory in nature.  Plaintiff supported this contention by arguing the affi­da­vit failed to "state wheth­er [Bak­er] per­son­ally re­placed the cover or was pres­ent and watched the cover being re­

placed."  Also, plain­tiff ar­gued para­graph 11 should have been strick­en because plain­tiff based her claim on af­fir­ma­tive neg­li­

gence rath­er than failure to main­tain, thereby making no­tice un­

nec­es­sary and making paragraph 11 irrele­vant.

In November 1998, the trial court denied plaintiff's motion to strike, finding plaintiff's arguments relevant to the weight of Baker's affidavit, but not to its admissibility.  Also in Novem­ber 1998, the trial court granted defendant's motion for summary judgment, finding "[n]either actual [n]or con­structive no­tice through the affidavits."  The trial court fur­ther held plaintiff's "argu­ment that some act done by the City created its own notice *** is [not] nor should [it] be the law."  Plaintiff filed the in­stant ap­peal.

II. ANALYSIS

The trial court found the city received no notice of the defect and granted defendant's mo­tion for sum­ma­ry judgment based upon sec­tion 3-102(a) of the Act (745 ILCS 10/3-102(a) (West 1994)), which states in rele­vant part:

"[A] local public entity has the duty to exer­cise ordinary care to maintain its prop­

erty *** 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." 

Rely­ing on 
Harding v. City of Highland Park
, 228 Ill. App. 3d 561, 571, 591 N.E.2d 952, 959 (1992), plaintiff ar­gues the Act does not apply to situ­a­tions where the municipali­ty cre­

ated the danger­ous situa­tion
.  In 
Har­ding
, plain­tiff in­jured her­

self after falling into a water meter pit.   The sec­ond dis­trict held "when an af­fir­ma­tive act of a municipality's agents or em­

ployees causes a dan­ger­ous condi­tion, no actual or construc­tive notice of said condi­tion is re­quired."  
Harding
, 228 Ill. App. 3d at 571, 591 N.E.2d at 959.  The court further recog­nized "evi­

dence [existed sug­gest­ing the city created] the dan­ger­ous con­di­

tion of the meter pit *** and *** these facts pro­vided actu­al or con­struc­tive no­tice to the defen­dant; hence, the protec­tion from municipal lia­bility provided by section 3-102(a) did not ap­ply."  
Harding
, 228 Ill. App. 3d at 571, 591 N.E.2d at 959.  Fi­nally, the court ac­knowl­edged the exis­tence of cases where plain­tiffs failed to establish no­tice, such as 
Bellino v. Village of Lake in the Hills
, 166 Ill. App. 3d 702, 520 N.E.2d 1196 (1988), and 
Palermo v. City of Chi­cago Heights
 2 Ill. App. 3d 1004, 276 N.E.2d 470 (1971).  How­ev­er, the court dis­tin­guished 
Palermo
 and 
Bellino
, find­ing nei­ther case square­ly ad­dress­ed the effect on the notice requirement where the munici­pali­ty neg­li­gent­ly and affirmatively cre­at­ed the dan­ger­ous con­di­tion.  

Defendant cites 
Palermo
 and argues it had no notice of the alleged de­fect, and therefore the trial court cor­rect­ly grant­ed its motion for sum­ma­ry judgment under the Act.  In 
Palermo
, plain­tiff "'stepped on a [wa­ter me­ter] lid and it tilted and *** flipped over,'" causing plaintiff's leg to fall into the hole.  
Palermo
, 2 Ill. App. 3d at 1006, 276 N.E.2d at 471.  The court found de­fen­dant had no actu­al or con­struc­tive no­tice of the de­fec­tive cover be­cause it ex­isted for only a few weeks and was not plainly visi­ble.  
Palermo
, 2 Ill. App. 3d at 1009, 276 N.E.2d at 473.  De­fen­dant also cites 
Pinto v. DeMunnick
, 168 Ill. App. 3d 771, 523 N.E.2d 47 (1988).  There, plain­tiff fell into a sink­

hole on a parkway.  Citing 
Palermo
, the first district found plaintiff failed to show actual or con­struc­tive notice of an unsafe condi­tion.  
Pinto
, 168 Ill. App. 3d at 774-75, 523 N.E.2d at 50.

As plaintiff contends in the instant case, the problem with 
Palermo
 and 
Pinto
 is that they focus on whether defendants 
re­ceived
 no­tice.  They do not directly ad­dress the issue on ap­

peal, name­ly the effect on the notice requirement where the mu­

nici­pal­i­ty 
af­fir­ma­tive­ly
 
cre­ates
 the dan­ger­ous condi­tion.  See 
Har­ding
, 228 Ill. App. 3d at 570, 591 N.E.2d at 958 (stating "
Palermo
 [nev­er] ad­dress[ed] this is­sue").  

Defen­dant argues the sec­ond dis­trict de­cid­ed 
Har­ding
 incorrectly.  Defendant further contends the underpin­nings of 
Har­ding
 do not sup­port its final determination and ­­asks this district to re­ject its rea­son­ing and hold­ing.  At the out­set, we note de­fen­dant conceded at oral argu­ment that, in some situ­a­

tions, an af­firma­tively negligent act 
could
 consti­tute no­tice.  Nevertheless, we address 
Har­ding
.

The principal case 
Harding
 relies on is  
Dziewatkowski v. City of Chi­ca­go
, 109 Ill. App. 2d 405, 248 N.E.2d 734 (1969).  There, the city left a mound of clay and dirt on the parkway adjacent to the sidewalk.  A light rain washed the clay and dirt onto the side­walk, making the side­walk slippery and causing plaintiff to fall.  The court found "the [c]ity, having caused the work to be done on the park­way prior to the occur­rence, had notice of the parkway's condi­tion and its proximity to the side­

walk."  
Dziewatkowski
, 109 Ill. App. 2d at 416, 248 N.E.2d at 740.  Defendant correctly argues the first district did not decide 
Dziewatkowski
 under, nor even mention, the Act.  How­ever, we note the facts of 
Dziewatkowski
 occurred prior to the Act's passage.  In any case, we are unpersuaded by defendant's argu­

ment.

Courts have repeatedly held section 3-102(a) of the Act merely codi­fies the common-law duty of a pub­lic entity to main­

tain its property.
  
Wag­ner v. City of Chi­ca­go
, 166 Ill. 2d 144, 152, 651 N.E.2d 1120, 1124 (1995).  The Act also codifies the common-law notice requirement.  
DiBenedetto v. Flora Town­ship
, 219 Ill. App. 3d 1091, 1101, 580 N.E.2d 647, 654 (1991).  
Howev­

er, as this court rec­og­nized in 
Corn­ing v. East Oakland Town­ship
, 283 Ill. App. 3d 765, 767, 670 N.E.2d 350, 352 (1996), not all common-law du­ties are abro­gat­ed by the Act. 

Beyond 
Dziewatkowski
, a long line of Illi­nois cases es­

tab­lish­ an "active-negligence" or "affirmative-negli­gence" ex­cep­

tion to the com­mon-law no­tice re­quire­ment.  See, 
e.g.
, 
Vil­lage of Jef­fer­son v. Chapman
, 127 Ill. 438, 447, 20 N.E. 33, 37 (1889) (stat­ing "[i]f a munici­pal corporation caus­es work to be done which is, in its nature, dan­gerous to the public, it is bound to take notice of the char­acter of the work and of the condition in which it is left, whether safe or dan­gerous"); 
City of Chicago v. Brophy
, 79 Ill. 277, 280 (1875) (finding city must take notice of dangerous situ­ation it creat­ed); 
City of Chicago v. Johnson
, 53 Ill. 91, 95 (1869) (stating "[n]o notice was nec­essary to [the city] as [it] caused the [dan­gerous condi­tion] to be made").  

Substantial secondary authority also suggests­ a municipality may be liable for its own negli­gent acts.  The Re­

state­ment (Second) of Torts rec­og­nizes "[t]here have been cases hold­ing a local gov­ern­ment lia­ble for active wrongdo­ing as dis­

tin­guished from non­fea­sance."  Re­statement (Second) of Torts­ §895C, Comment 
e
, at 409 (1979).  McQuillin's treatise on munic­

ipal cor­po­ra­tions states "[i]f the defec­tive condition is due to the act of the municipal­ity itself, *** no notice of any kind, either actual or construc­tive, is neces­sary."  19 McQuillin on Mu­nicipal Corpora­tions §54.104, at 448 (3d rev. ed. 1994) (hereinafter McQuillin).  In sup­port of this prop­o­si­tion,  McQuillin cites cases from 33 states, includ­ing 
John­son
, 
Brophy
, 
Chapman
, and 
Dziewatkowski
.  19 McQuillin at 449-50.  See also 2 S. Stevenson, Antieau on Local Government Law §35.06(4), at 35-48 (2d ed. April 1999) ("There is no need *** to show *** notice *** when the local government itself caused the condi­tion").

The ­Act "must be strictly con­strued against the public enti­ty in­volved."  
Aikens v. Morris
, 145 Ill. 2d 273, 278, 583 N.E.2d 487, 490 (1991).  Inasmuch as Illi­nois courts have consis

tently held the Act is a mere codification of the common law (
Wag­ner
, 166 Ill. 2d at 152, 651 N.E.2d at 1124) but does not abrogate all common-law duties (
Corn­ing
, 283 Ill. App. 3d at 767, 670 N.E.2d at 352), we find no reason to re­ject the common-law exception to the notice requirement where the city af­fir­ma­tive­ly creates a dangerous condition.

While not cited by either party, the fifth district recently followed 
Harding
 in 
Mark Twain Illinois Bank v. Clinton Coun­ty
, 302 Ill. App. 3d 763, 769, 706 N.E.2d 94, 98 (1999).  Moreover, other ju­ris­dic­tions have also cited 
Har­ding
 with ap­

prov­al.  See, 
e.g
., 
Sherman v. Dis­trict of Co­lum­bia
, 653 A.2d 866, 870 (D.C. App. 1995) (stating "[p]roof that the Dis­trict had no­tice of the de­fec­tive condition is irrel­evant here, where lia­

bility is pre­mised on the primary negligence of the District's agent").  Other courts have adopted reasoning similar to 
Har­ding
.  See, 
e.g.
, 
Marti­nez v. City of New York
, 224 A.D.2d 242, 243, 637 N.Y.S.2d 706, 707 (1996) (holding "[n]either actual nor con­struc­

tive notice need be proven when the defendant is responsible for caus­ing or creating the defective condition re­sponsible for the inju­ries to the plain­tiff"); 
Ruwe v. Board of Township Trustees­­
, 29 Ohio St. 3d 59, 60, 505 N.E.2d 957, 958 (1987) (stating "[t]here is no evidence *** appellant created the [condition] or had actual notice thereof").

Other pro­vi­sions of the Act and case law thereunder likewise suggest a city is liable for its own affirmative acts.  For exam­ple, sec­tion 3-103(a) of the Act pro­vides:

"(a) A local public entity is not lia­ble under this Article for an inju­ry caused by the adoption of a plan or design of a con­

struction of, or an improvement to pub­lic prop­erty where the plan or design has been approved in advance of the construction or improvement by the legislative body of such enti­ty or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in confor­mity with standards previ­

ously so approved.  
The
 
local
 
public
 
entity is
 
liable
, 
however
, 
if
 
after
 
the
 
execu­tion
 
of such
 
plan
 
or
 
design
 
it
 
appears
 
from
 
its
 
use that
 
it
 
has
 
created
 
a
 
condition
 
that
 
it
 
is not
 
reasonably
 
safe
."  (Emphasis added.)  745 ILCS 10/3-103(a) (West 1994).

Further, where a city undertakes to do something, but does it improper­ly, it may be liable.  In 
Baran v. City of Chi

cago Heights
, 43 Ill. 2d 177, 180-81, 251 N.E.2d 227, 229 (1969), 
our supreme court stated:

"In holding a city responsible for injuries thus caused[,] the court is not reviewing the city's discretion in selecting a plan.  It is not controlling or passing upon the city's estimate of public needs.  Nor is it deciding what the 'best' kind of improvement may be.  It is simply saying that 
when
 
a
 
city
 
creates a
 
hazardous
 
condition
 
and
 
someone
 
is
 
injured as
 
a
 
conse­quence
 
it
 
must
 
respond
 
in
 
damages
, just as others are required to do. *** A mu­nic­i­pal corpora­tion, like an individual or a private corpo­ra­tion, is required to exercise its rights and powers with such precautions as shall not subject others to inju­ry.  The rule which protects it in the exercise of its governmen­tal functions should not be con

strued to relieve from liability when the plan devised, if put in opera­tion, 
leaves
 
the city's
 
streets
 
in
 
a
 
dangerous
 
condition
 for public use."  (Emphasis added.) 

While the court in 
Baran
 did not examine the defen-

dant's liability within the scope of section 3-102, 
Baran
 and sec­tion 3-103 suggest immunity does not exist where the city affirmatively created the con­dition causing the injury.  

Finally, this court has recognized other situations where a plain­tiff need not prove actual or con­struc­tive no­tice where defendant created the danger­ous con­di­tion.  See 
Reed v. Wal-Mart Stores, Inc.
, 298 Ill. App. 3d 712, 715, 700 N.E.2d 212, 214 (1998) (holding injured invitee did not have to prove notice of hazardous condition in a store); see also 
Wind v. Hy-Vee Food Stores, Inc.
, 272 Ill. App. 3d 149, 155, 650 N.E.2d 258, 262 (1995); 
Donoho v. O'Connell's Inc.
, 13 Ill. 2d 113, 122, 148 N.E.2d 434, 439 (1958). While 
Reed
, 
Wind
, and 
Donoho
 were decided in a different con­text and not under the Act, they are in harmony with 
Harding
.

Based on the foregoing, we find the 
Harding
 reasoning persuasive.  We note, however, the 
Harding
 court stated "when an af­fir­ma­tive act of a municipality's agents or em­ployees caus­es a dan­ger­ous condi­tion, 
no
 
actual
 
or
 
construc­tive
 
notice
 
of
 
said
 
condi­tion
 
is
 
re­quired
" (emphasis added) (
Harding
, 228 Ill. App. 3d at 571, 591 N.E.2d at 959); however, in the next sen­tence, the court found "there was evidence that the dan­gerous con­dition of the meter pit in question was created by defendant's em­ployees and that these facts 
provided
 
actu­al
 
or
 
con­structive
 
notice
 to the defendant; hence, the protection from municipal liabili­ty pro­vided by section 3-102(a) did not ap­ply" (emphasis added) (
Harding
, 228 Ill. App. 3d at 571, 591 N.E.2d at 959).  We con

clude the second approach is more appropriate and consistent with the common law (see 
Chapman
, 127 Ill. at 447, 20 N.E. at 37; 
Brophy
, 79 Ill. at 280) and hold a city's affirmatively negligent act constitutes notice under sec­tion 3-102 of the Act (745 ILCS 10/3-102 (West 1994)). 

Since the trial court based its judgment solely upon its interpretation of the Act, we need not address plaintiff's remaining arguments.

III. CONCLUSION

Based on the foregoing, we reverse the trial court's judgment and remand this case.  

Reversed and remanded.

GARMAN, J., concurs.

McCULLOUGH, J., specially concurs.

JUSTICE McCULLOUGH, specially concurring:

I write this special concurrence only to make it clear as to what we are not deciding.  The instant case comes to us on the trial court's grant of summary judgment.  We are not deciding the question of whether the City was guilty of an "affirmatively negligent act."  A question of fact exists concerning the need for notice.

The 
Harding
 court had the benefit of all the evidence presented at trial.  
Harding
 also relied on 
Dziewatkowski
 in stating "when an affirmative act of a municipality's agents or employees causes a dangerous condition, no actual or constructive notice of said condition is required."  
Harding
, 228 Ill. App. 3d at 571, 591 N.E.2d at 959.  Additionally, 
Harding
 found that evidence suggested the dangerous condition was created by defen

dants' employees and that these facts provided actual or con

structive notice to the City.

It is, at the most, premature to say the City caused the dangerous condition.  The facts in 
Dziewatkowski
 relied on by the 
Harding
 court are considerably different than what is known here.  In 
Dziewatkowski
, plaintiff fell on a mud-coated sidewalk adjacent to a site where city workers had dug a parkway.

Nothing in the record suggests the City had done any

thing with respect to altering the condition of the meter and cover other than a periodic reading of the meter, the last reading--prior to the incident--being June 2, 1995.  No facts suggest any construction project.  The facts as they develop on remand may show the immunity statute should apply.

