MONTHLY QUIZ: City has approximately 900 miles of sidewalks in its boundaries and operates several programs that involve sidewalk inspections – including a sidewalk repair and replacement program that is dedicated to recognizing / repairing / replacing unsafe sidewalks conditions. Plaintiff leaves for a mid-morning walk and trips over an alleged 2-inch height differential between uneven sidewalk sections, falls to the ground and is injured. Plaintiff and her Husband sue City, alleging that City failed to maintain, inspect and warn of the sidewalk’s condition.” Plaintiff further alleges that the City “knew or should have known of the sidewalk’s unsafe condition. With regard to City’s notice, Plaintiff presents no direct evidence that the City has knowledge of the condition. However, Plaintiff and Husband testify that “based upon Google Maps,” the defect has been there for several years and is “blatantly obvious” to homeowners or City employees in the area. Plaintiff presents Google images from 8 and 2 years prior to the fall which show the sidewalk “defect,” without specific measurements. Husband further testifies that he saw City vehicles in the area prior to the fall, looking for water use violations. Plaintiff also presents an affidavit from Son, who attests that 8 years ago, the height differential was a least 1-inch and that it had gotten worse over time. City moves for summary judgment, arguing that Plaintiff failed to demonstrate “actual or constructive notice” of the condition. Do Plaintiff and Husband have enough evidence to survive summary judgment? You be the judge (Answer below).
LEAHY, EISENBERG & FRAENKEL OPENS MISSOURI OFFICE: Leahy Eisenberg & Fraenkel is pleased to announce the opening of its Missouri office, located at 400 Chesterfield Center, Suite 400, in Chesterfield, Missouri. The continued growth and expansion into Missouri strengthens the Firm’s reach throughout the Midwest and enhances the ability to serve the needs of the Firm’s many clients. Robert Ostojic, the Chair of the Firm’s Subrogation Department, will oversee the Missouri office.
UM/UIM COVERAGE - ILLINOIS SUPREME COURT DECLINES TO ADOPT PER SE RULE, REITERATES THAT ANTISTACKING CLAUSES REQUIRE CASE-BY-CASE REVIEW & REJECTS AMBIGUITY ARGUMENT BASED ON MULTIPLE LIMITS LISTED IN DECLARATIONS: School bus Driver and adult Volunteer were transporting a high school JV basketball Coach and Team, when a Kenworth semitruck, driven by Operator in the course of his employment for Company, crossed the grass median and collided with the bus. Operator and Volunteer were killed and Driver and the other occupants were injured. Driver filed an injury action against Operator’s Estate and Company. The Company’s commercial vehicle insurance Policy insured the Kenworth and six other vehicles (2 semitrucks / 4 trailers) and listed Operator as a covered driver. Ultimately, Operator’s Estate filed a coverage action, seeking a declaration that the $1 million liability limits for the Kenworth could be stacked with the 6 other listed autos, for a combined $7 million in liability coverage. The declarations pages included a chart listing the different autos and types of coverages and identified “$1 Million” as the “Combined Liability” limit. The Policy also provided that the “liability limits … shown in the Declarations, is the limit shown for each accident … is the total amount of coverage and the most [Insurer would] pay for damages because of or arising out of … any one accident.” Additionally, the Policy included an anti-stacking clause which stated that “[t]he Limit of Insurance for this coverage may not be added to the limits for the same or similar coverage applying to other autos insured by this policy to determine the amount of coverage available for any one accident … regardless of the number of: a. Covered autos …. d. Claims made or suits brought; e. Persons injured; or f. Vehicles involved in the accident.” The trial court found the Policy ambiguous, construed the Policy against Insurer, and held that stacking of the liability limits was allowed. The appellate court reversed, finding the Policy’s antistacking clause unambiguous and enforceable. Before the Illinois Supreme Court, Operator’s Estate advocated for the adoption of a rule that insurance policies, which include declaration pages that separately list liability limits for each of the multiple insured vehicles insured, should be considered per se ambiguous, with the result that the stacking of coverage should be allowed. Citing to more than 30-years of precedent, the court rejected the presumption that insurance policies are automatically “ambiguous regarding the limits of liability any time that the limits are listed more than once in the declarations” and pointed out its repeated rejection of per se rules on such issues. Reading the policy as a whole, the Illinois Supreme Court advised that the declarations pages were to be construed in light of the anti-stacking provision, which expressly stated that the limits could not be aggregated. On this basis, the Illinois Supreme Court held that $1 million liability limits for each of 7 covered vehicles could not be “stacked” for a total of $7 million in coverage for one accident. Mark Kuhn v. Owners Insurance Company, 2024 IL 129895 (May 23, 2024).
ANSWER TO QUIZ: Plaintiff and Husband win, City loses. Under Illinois law (i.e. The Local Governmental and Governmental Employees Tort Immunity “Act” - 745 ILCS 10/3-102(a)), though municipal propertymust be maintained in a “reasonably safe condition,” a municipality is not liable for injury unless a plaintiff proves the municipality had “actual or constructive notice of the … condition” and “reasonably adequate time … to remedy or protect against such condition.” As to actual notice, Plaintiffs argued that the existence of the sidewalk programs, the google images, affidavit and other circumstantial evidence created a triable issue of fact as to notice. The appellate court determined, however, that Plaintiffs’ circumstantial evidence presented “nothing more than a possibility that a City employee or contractor may have seen the defect.” In contrast, Plaintiffs presented sufficient evidence of City’s constructive notice to survive summary judgment. As to constructive notice, the appellate court relied upon the evidence that the defect existed – to some extent – for more than 8 years, disputed evidence as to whether the defect was conspicuous and the testimony that the defect had worsened over time. Further, the appellate court noted that whether the City’s sidewalk programs were “reasonable” and sufficient to provide immunity under the Tort Immunity Act was a question of fact, precluding summary judgment. Heath v. City of Naperville, et al., 2024 IL App (3d) 230663 (Sep. 6, 2024).
