Injuries from potholes and street repairs: About municipal liability and the Tort Immunity Act.

Do you know what to do if you are injured by pothole not yet patched or repaired?

Do you know what to do if you are injured by a pothole not yet patched or repaired?

Spring weather means road construction and pothole repair on many Northern Illinois roadways. The city of Chicago may be paying closer attention to dangerous conditions after a recent Cook County Court awarded $2.7 million to a postal worker who ruptured his ACL in March 2008. The injured worker, was “not able to see the sinkhole in the crosswalk,” said his attorney, Gerald Bekkerman, “because it was obscured by the mail cart he was pushing. Even after six surgeries and years of therapy, the postal worker is still unable to return to work. [i]

The city of Chicago would have certainly repaired a known pothole, right? In his comments to reporters Bekkerman stated, “The city of Chicago admitted that it knew about the sinkhole for a period of six months through numerous 311 calls and even took trips to the scene to examine the sinkhole. At trial, they admitted they knew the sinkhole could cause harm. However, it was not repaired–or covered.[ii]

Do you know what to do if you are injured by a pothole not yet patched or repaired?

The first thing to consider is who owns the property where the injury took place. Was it a city street within the incorporated city limits? Roads can be owned and maintained by cities, counties, townships, state and private individuals. A few phone calls to local offices can help in determining who is responsible for roadway maintenance and repairs.

In many instances, the proper procedure requires an injured person to file a notice of a potential injury claim with the municipality. These notices can be treated like claims to recover from insurance policies. The injury claim will be considered and either paid as requested or rejected. When claims receive low ball offers or rejections people usually hire lawyers to file their complaint in court, suing the municipality for damages. Note that cases like this one, against the city of Chicago, must be filed within the statutory limitations period of one year of the incident.[iii]

The city is liable for the performance of its duties, including pothole repair.

While local governments are generally immune from liability for negligence and willful and wanton misconduct, they are not immune from liability from the performance of ministerial tasks. Repairs to roads are generally considered ministerial tasks for which the local government may be liable if negligently performed.[iv]  Whether acts are discretionary or ministerial, for purposes of determining a local government’s immunity from liability is determined on a case-by-case basis.

Illinois law states municipalities have a duty to reasonably maintain crosswalks for pedestrians.[v] Regarding liability for pot hole repair and whether it is considered a ministerial task, the Illinois Supreme Court has previously held that ‘[a] municipal corporation acts judicially or exercises discretion when it selects and adopts a plan in the making of public improvements, but as soon as it begins to carry out that plan it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner.’[vi]

Here is a link to the Illinois Tort Immunity Act. The question of whether the city acted negligently in performing ministerial tasks for which it may be liable depends on the facts and each instance of injury. If you are injured by a street repair or lack thereof, an injury attorney at Michael V. Favia & Associates can help. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. For more about Michael V. Favia & Associates’ professional licensing work, please visit www.favialawfirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter.

 


[i] Sun Times: Mega-pothole remains despite 911 call, by Fran Spielman, Mar. 11, 2014.

[ii] Sun Times: Mega-pothole remains despite 911 call, by Fran Spielman, Mar. 11, 2014.

[iii] 745 ILCS 10/8-101. Limitation. (a) No civil action other than an action described in subsection (b) may be commenced in any court against a local entity or any of its employees for an injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued.

[iv] 745 ILCS 10/2-201, 3-102(a).

[v] 745 ILCS 10/3-102(a).

[vi] Hanley v. City of Chicago, 343 Ill.App.3d 49, 56, 795 N.E.2d 808, 814 (1st Dist. 2003)

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