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Government Immunity & Liability

Government Immunity and Liability
Illinois Appellate Court
Hollenbeck v. The City of Tuscola, 2017 IL App (4th) 160266 (March 13, 2017).

Overview
Hollenbeck brought suit against the City of Tuscola (Tuscola) to recover for injuries suffered in a fall on Tuscola’s parkway, claiming it had a duty to maintain the property in a reasonably safe condition and exercise ordinary care to see that the property was safe for lawful use.  Tuscola filed an affirmative defense that Hollenbeck negligently failed to keep a proper lookout where she was walking and that the claim was barred by the provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Act).  The trial court held that the conditions of the area in which Hollenbeck fell were not unreasonably dangerous and granted Tuscola’s motion for summary judgement.  The appellate court affirmed.

Summary
Hollenbeck fell into a depression in the ground on a metal catch basin in the parkway owned by Tuscola.  Her complaint alleged Tuscola was negligent in its inspection of the catch basin, that Tuscola knew or should have known there was an unreasonably dangerous depression caused by the catch basin, and that as a direct and proximate result of Tuscola’s negligence, she stepped in a large depression causing her to fall and injure herself.  Tuscola argued that Hollenbeck was negligent in failing to watch where she was walking and also that the claim was barred by the Act. 

The Act protects “local public entities and public employees from liability arising from the operation of government” (745 ILCS 10/1-101.1).  Except as otherwise provided by the Act,
 
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 … 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.  Id.
 

Citing the Illinois Supreme Court, the appellate court noted that a municipality does have a duty to exercise ordinary care in maintaining parkways in reasonably safe conditions; however “the duty of care with regard to parkways is not identical to the duty of care with regard to sidewalks. Pedestrians who leave the sidewalk cannot assume that parkways are free of defects …” Marshall v. City of Centralia, 143 Ill. 2d 1, 9 (1991).  Municipalities cannot be held liable for parkway conditions that are customary, even though they may be slightly dangerous; however “a city has no right to maintain anything in the nature of a pitfall, trap, snare, or other like obstruction.” Id.

In determining whether the condition of the catch basin constituted a pitfall, the appellate court noted that no evidence existed that indicated the lid was missing, broken, loose, or that it sat at a depth that was unreasonably dangerous.  The appellate court found that Hollenbeck’s argument that if an individual could be injured by stepping into a hole, that hole would constitute an impermissible depth to be conclusory.  Holding that the catch basin in subject was in customary condition even thought it could be slightly dangerous, the appellate court affirmed the trial court.