In Ponto v. Levan, 2012 IL App (2d) 110355 (June 27, 2012), Plaintiff sued Defendant auto driver for injuries suffered in an auto accident. Plaintiff alleged negligence and asserted Defendant drove the vehicle while intoxicated.
In turn, Defendant’s counsel answered the complaint and filed a third-party counterclaim for contribution against the municipality, alleging the City's negligent maintenance of its water mains created an ice patch that caused Defendant's vehicle to skid into Plaintiff's vehicle.
Defendant auto driver admitted liability, and the jury found in Plaintiff's favor, finding Defendant 65% at fault and the City 35% at fault. After the verdict that was based on the counterclaim, the Court properly denied Plaintiff leave to amend to add the City as direct Defendant, as the one-year limitations period of Tort Immunity Act applied, and Section 2-406 of the Code of Civil Procedure did not act so as to extend the period.
Thus, unless and until Defendant auto driver pays Plaintiff more than 65% of verdict, the City as a defendant owes nothing. The Appellate Court found the trial court properly denied City's motions for discretionary immunity; on date of accident, as their water superintendent was not exercising discretion as to any improvement or plan of road where accident occurred.
We join with one of our experienced claim managers in finding the Appellate Court was arguably incorrect on the immunity decision, but that is not the unusual aspect of the case.
Regarding the inability of Plaintiff to collect from the City, the initial reaction was it was inherently unfair Plaintiff will receive nothing from the City after the jury found the city partially at fault. However, the reason this occurred is Plaintiff failed to sue the City as a direct defendant.
In that regard, the inability to recover from the City is based on the same concept that is regularly applied if someone fails to bring a civil action against an IL municipality within one year. There are many situations when the passage of time has not prejudiced the ability to investigate the incident. One vehicle could rear-end another and a video of the entire incident could be on the web, but the one year statute would still apply.
The failure here may be with Plaintiff’s attorney. There was plenty of time for an amended complaint to bring the City in within the applicable one-year statute. We thank our intrepid reader for his thoughts and comments on this important ruling.