No. 3--03--1026

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

JUSTICE SCHMIDT delivered the opinion of the court:

Plaintiff Doris Lewis sued Rutland Township and township officials Clarence Bailey and Russell Boe for personal injuries she suffered when the school bus she was driving hit a low spot along East 22nd Road in Rutland Township. In a fourth amended complaint, plaintiff added Boehm Bros., Inc., a road construction company, as a party defendant. The trial court granted the township defendants' motion for summary judgment, leaving the suit against Boehm Bros. intact. Plaintiff brings this interlocutory appeal pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). She argues that the trial court erred by (1) striking an affidavit of the emergency medical technician (EMT) who assisted plaintiff at the scene of the incident, and (2) by granting summary judgment for the township defendants. We affirm.

Plaintiff's complaint alleged that on Monday, February 28, 2000, an area of the township's gravel road that had been under construction between December 16 and December 21, 1999, had sunken so as to create an unreasonably dangerous hole in the roadway. She alleged that the unsafe condition existed "for a period of time, in violation of 745 ILCS 10/3--102," and that the defendants failed to repair the roadway when they "knew or should have known of a dangerous condition, in violation of 745 ILCS 10/3--102."

In their answer to the complaint, the township defendants denied actual or constructive knowledge of an unreasonably dangerous condition in the road. They moved for summary judgment on the ground of immunity under the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1--101 et seq. (West 2000)). They claimed, inter alia, that plaintiff could not establish that they had any notice of the allegedly unsafe condition of the road prior to the date of plaintiff's injury.

In support of their motion, the defendants submitted excerpts of plaintiff's discovery deposition. In her deposition, plaintiff stated that she regularly drove along East 22nd Road in the afternoons of school days. She said a depression, or dip, had gradually developed in the gravel road in the area where construction had been done. Plaintiff slowed the bus and drove over the dip without incident on Friday, February 25, 2000. She recalled that it had rained most of that weekend. On Monday, February 28, plaintiff slowed for the dip, but she did not observe that the area had sunken significantly since she last drove over it the prior Friday. Consequently, when the wheels of the bus hit the sunken area, she was severely jolted and injured her back.

Plaintiff admitted that the weather conditions over the weekend could have accounted for the deterioration of the road. Plaintiff further admitted that she had not given the township notice of the depression at any time prior to February 28, 2000. She had not seen any township officials on the road between the time the road was reopened in December 1999 and February 28, and she admitted that she did not know of any complaints made or notice given to the township about the road's condition prior to February 28.

Defendant Boe's deposition was also submitted in support of defendants' summary judgment motion. Boe stated that, as Rutland township road commissioner, he requested the replacement of the culvert on East 22nd Road because the road was scheduled for updating from gravel to tar-and-chip. He said the work was bid out and supervised by the La Salle County Highway Department. He said the culvert replacement appeared to have been done properly when he checked it after the construction project was completed in December 1999. He could not recall any specific dates that he drove on East 22nd Road between the date it was reopened and February 28, 2000, but he said it was his practice to check all township roads several times per month.

In support of her objection to the motion for summary judgment, plaintiff submitted an affidavit signed by Jim Gibson, an EMT dispatched to the scene of the accident on February 28. This affidavit stated:

"That the trench was approximately two (2) to three (3) feet wide, approximately one and a half (1