Bray v. City of Chicago

2022 IL App (1st) 201214

• Court: Appellate Court of Illinois
• Decided: March 29, 2022
• Docket: 1-20-1214
• Status: Published

Opinion

2022 IL App (1st) 201214

No. 1-20-1214

Opinion filed March 29, 2022.

Second Division

_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT _____________________________________________________________________________

MARILYN BRAY, ) Appeal from the ) Circuit Court of Plaintiff, ) Cook County. ) v. ) No. 2017 L 6402 ) THE CITY OF CHICAGO, a Municipal Corporation; ) SL CIVIC WACKER LLC; and LYRIC OPERA OF ) CHICAGO, ) ) Defendants, ) ) (The City of Chicago, a Municipal Corporation, Defendant ) and Counterplaintiff-Appellant; SL Civic Wacker LLC, and ) The Honorable Lyric Opera of Chicago, Defendants and Counterdefendants- ) Arnette R. Hubbard, Appellees). ) Judge Presiding. _____________________________________________________________________________

JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and opinion.

OPINION

¶1 Marilyn Bray, who is not a party to this appeal, was injured when she tripped and fell on

an uneven seam in a sidewalk owned by the City of Chicago (City). The sidewalk was located

above underground storage vaults that were used by SL Civic Wacker LLC (SL Civic), and its No. 1-20-1214

tenant, Lyric Opera of Chicago (Lyric Opera). At the time of Bray’s fall, SL Civic held a valid

public way use permit from the City for the vaults, but it allowed Lyric Opera to use the vaults

pursuant to the terms of their lease agreement. Due to her injuries, Bray filed a premises liability

action against the City, SL Civic, and Lyric Opera, alleging that they negligently maintained the

sidewalk by failing to repair the defect.

¶2 The City, however, subsequently filed counterclaims against SL Civic and Lyric Opera

(counterdefendants), respectively, seeking contribution and indemnity for all or a portion of any

judgment entered in favor of Bray in the underlying action. According to the City, they were

liable for any negligence to Bray because the Chicago Municipal Code (Municipal Code)

provisions governing both public way and subsidewalk space use required them to maintain the

sidewalk over the vaults.

¶3 SL Civic moved to dismiss the City’s counterclaim against it, while Lyric Opera moved

for summary judgment, both arguing they owed Bray no duty of care, statutory or otherwise,

regarding the maintenance, repair, and/or use of the sidewalk where she fell. The circuit court

agreed and granted their respective motions. The court therefore dismissed with prejudice the

City’s counterclaim against SL Civic and entered summary judgment in favor of Lyric Opera on

the City’s counterclaim against it.

¶4 In this interlocutory appeal, the City maintains that a duty of care was imposed on SL

Civic and Lyric Opera, respectively, stemming from their permit and lease obligations to comply

with all Municipal Code provisions. For the reasons that follow, we affirm in part and reverse in

part the circuit court’s judgment and remand for further proceedings.

¶5 I. BACKGROUND

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¶6 The following relevant facts were gleaned from the parties’ pleadings, depositions,

affidavits, and other supporting documents and were all presented to the court below.

¶7 On March 15, 2017, Bray was walking eastbound on West Madison Street in downtown

Chicago when she tripped and fell on an uneven seam in the sidewalk, which was owned by the

City. The sidewalk was located next to the Civic Opera Building over some underground storage

vaults that were used by the building’s owner, SL Civic, and its tenant, Lyric Opera. Although

the City owned the vault space, it had previously issued SL Civic a public way use permit to

construct and maintain the vaults.

¶8 As we will discuss below, SL Civic was obligated under the terms of the permit to

comply with “the provisions of [s]ection 10-28-015 and all other required provisions of the

Municipal Code” governing, among other things, public way use liability. See Chicago

Municipal Code § 10-28-015 (amended Oct. 14, 2021). Lyric Opera, on the other hand, was not a

permit holder for the vaults, but it used them for storage pursuant to the terms of its lease

agreement with SL Civic. The lease agreement, however, expressly required Lyric Opera to

“comply with all Laws,” thereby including those laws set forth in the Municipal Code, which

will also be discussed in greater detail below. Bray sustained injuries from the fall including

fractures to her kneecap and elbow, among other injuries.

¶9 A few months after her fall, Bray filed a premises liability action against the City,

alleging that the City’s negligence in failing to repair the sidewalk defect was the direct and

proximate cause of her injuries. Bray, however, later amended her complaint to add negligence

claims against SL Civic and Lyric Opera, respectively, alleging that they were either a “permit

holder and/or beneficiary of a permit for the use of a vaulted sidewalk” and, therefore, they had a

duty to maintain the sidewalk in a reasonably safe condition.

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¶ 10 We note, however, that Bray’s negligence claim against SL Civic was initially dismissed

without prejudice for failing to allege facts that showed SL Civic “assumed control” of the

sidewalk above the vaults, but she eventually refiled the claim, setting forth additional

allegations against SL Civic. Specifically, Bray asserted that even if SL Civic did not assume

control of the sidewalk, it was obligated to maintain the sidewalk under section 10-28-540 of the

Municipal Code (Chicago Municipal Code § 10-28-540 (amended Nov. 9, 2016)), which

requires “[e]very person using the space under any sidewalk” to “keep such sidewalk in good

and safe condition and repair.”

¶ 11 Meanwhile, the City filed two-count counterclaims against SL Civic and Lyric Opera,

respectively, seeking contribution and indemnity for all or a portion of any judgment entered in

favor of Bray in the underlying action. The City alleged that counterdefendants were liable for

any negligence to Bray because each had a duty stemming from their contractual obligations to

maintain the sidewalk over the vaults in a reasonably safe condition, that they breached that duty

by not repairing the purported sidewalk defect, and that the breach proximately caused Bray’s

injuries. 1 In support, the City attached to its counterclaims a copy of SL Civic’s public way use

permit, providing the vaults had to be maintained in accordance with all City ordinances and the

Municipal Code.

¶ 12 A. SL Civic’s Motion to Dismiss

¶ 13 SL Civic, thereafter, moved to dismiss the City’s counterclaim against it pursuant to

section 2-615 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-615 (West 2018)),

asserting that neither its permit nor the Municipal Code imposed on it a duty to maintain and

1 We note that the circuit court originally dismissed without prejudice the City’s counterclaim against SL Civic when it dismissed Bray’s negligence claim against SL Civic; however, the City filed an amended counterclaim against SL Civic, as relevant here, after Bray refiled her negligence claim against SL Civic. See supra ¶ 10. -4- No. 1-20-1214

repair the sidewalk over the vaults it used. For the same reasons, SL Civic also moved to dismiss

Bray’s negligence claim against it, albeit under section 2-619 of the Civil Code (id. § 2-619).

¶ 14 Following a hearing, the circuit court granted the dismissal motions, holding that SL

Civic owed no duty of care to Bray because “nothing show[ed] the permit required SL Civic to

maintain the sidewalk above the vaults” or that “SL Civic assumed control over the sidewalk.”

The court concluded that SL Civic, therefore, could not be held liable for Bray’s injuries.

Consequently, the court entered an order on January 28, 2020, dismissing with prejudice Bray’s

negligence claim against SL Civic, as well as the City’s counterclaim against SL Civic for

contribution and indemnity.

¶ 15 B. Lyric Opera’s Summary Judgment Motion

¶ 16 Lyric Opera, meanwhile, moved for summary judgment on the City’s counterclaim

against it, and on Bray’s negligence claim against it. Lyric Opera argued in its summary

judgment motion against the City, as relevant here, that it was entitled to judgment as a matter of

law because it had no legal duty under either its lease agreement with SL Civic or the Municipal

Code to repair the sidewalk over the vaults it used for storage. In support, Lyric Opera attached

to its motion an affidavit from its chief financial and administrative officer, Roberta Lane. Her

affidavit stated that while Lyric Opera used “some of the space within the subsidewalk vaults as

a storage area,” it “never under[took] to repair or maintain the vaults.”

¶ 17 Lyric Opera also supported its motion with a copy of its lease agreement with SL Civic.2

The lease agreement provided that Lyric Opera was responsible for installing “any membrane it

require[d] to prevent leakage from sidewalks above any below-ground vault area it may be using

for storage or equipment or other purposes.” Additionally, Lyric Opera was responsible “for

2 We note that Lyric Opera entered into the lease agreement with SL Civic’s predecessor in interest, EOP Operating Limited Partnership. -5- No. 1-20-1214

removing and replacing any such sidewalk to install a membrane to prevent and stop leakage.”

According to Lyric Opera, this did not impose any legal duty on it to maintain and repair the

sidewalk over the vaults where Bray fell since it never installed an anti-leak membrane under

that sidewalk.

¶ 18 In response, the City asserted that a duty of care arose based on Lyric Opera’s use of the

vaults below the sidewalk where Bray fell and the terms of its lease agreement whereby Lyric

Opera effectively agreed to maintain those vaults to prevent any water leakage inside them. The

City argued this, at the very least, created a genuine issue of material fact as to whether Lyric

Opera had sufficient control over the space to give rise to a duty of care, precluding summary

judgment. The City supported its response with an affidavit from the assistant chief engineer of

its transportation department, Luis Benitez. His affidavit stated that the sidewalk where Bray fell

was “specifically designed” to act as a roof to the underground vaults whose structure was

“solely for the benefit of the owner of the Civic Opera Building and its occupants/tenants.”

¶ 19 The circuit court ultimately disagreed, concluding that while Lyric Opera might have

benefitted from using the vaults, this did not establish that it had a duty to maintain and repair the

sidewalk over them. In reaching its conclusion, the court found there was no evidence presented

that Lyric Opera either “assumed control over the City sidewalk area at issue” or was obligated

“to maintain or repair the concrete sidewalk above the vaults.” And without such evidence, Lyric

Opera could not be held liable for Bray’s injuries. The court thus entered an order on March 25,

2020, granting Lyric Opera’s motions for summary judgment against both Bray and the City,

respectively.

¶ 20 While Bray’s negligence claim against the City was still pending, the circuit court entered

an order on October 16, 2020, finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar.

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8, 2016), that there was no just reason for delaying enforcement or appeal of the court’s

dismissal order and summary judgment order entered in favor of SL Civic and Lyric Opera,

respectively, on the City’s counterclaims against them for contribution and indemnity. 3 The City

now appeals.

¶ 21 II. ANALYSIS

¶ 22 On appeal, the City challenges the circuit court’s judgment dismissing with prejudice its

counterclaim against SL Civic, seeking contribution and indemnity for all or a portion of any

judgment entered in favor of Bray. A motion to dismiss brought under section 2-615 of the Civil

Code attacks the legal sufficiency of a claim by alleging defects on its face. Certain

Underwriters at Lloyd’s, London v. Reproductive Genetics Institute, 2018 IL App (1st) 170923,

¶ 13. Such a motion should not be granted unless it is clearly apparent from the pleadings that no

set of facts can be proved that would entitle the claimant to recovery. Id.

¶ 23 In reviewing the sufficiency of a claim, we accept all well-pleaded facts set forth therein

as true. Marshall v. Burger King Corporation, 222 Ill. 2d 422, 429 (2006). The essential question

then is whether those allegations, construed in the light most favorable to the nonmoving party,

are sufficient to establish a claim upon which relief may be granted. United City of Yorkville v.

Fidelity & Deposit Co. of Maryland, 2019 IL App (2d) 180230, ¶ 59. We review a circuit court’s

dismissal of a claim pursuant to section 2-615 of the Civil Code de novo. Id. Furthermore, our

analysis in this case involves statutory construction and contract interpretation, which present

questions of law that we also review de novo. Sandlin v. Harrah’s Illinois Corp., 2016 IL App

(3d) 150018, ¶ 10.

3 We note that the circuit court initially denied the City’s motions requesting Rule 304(a) findings for the court’s interlocutory dismissal and summary judgment orders, but the court later granted the City’s motions to reconsider those rulings. -7- No. 1-20-1214

¶ 24 Additionally, the City asserts that the circuit court erroneously entered summary

judgment in favor of Lyric Opera. The City, however, only challenges the court’s summary

judgment ruling with respect to the contribution count of its counterclaim against Lyric Opera.

Summary judgment should not be granted unless the pleadings, depositions and admissions on

file, together with any affidavits, construed strictly against the moving party, reveal that no

genuine issue of material fact exists so that the movant is entitled to judgment as a matter of law.

735 ILCS 5/2-1005(c) (West 2018); Monson v. City of Danville, 2018 IL 122486, ¶ 12. Stated

differently, if the record reveals a dispute as to any material issue of fact, summary judgment

must be denied regardless of the lower court’s belief that the movant will or should prevail at

trial. Ignarski v. Norbut, 271 Ill. App. 3d 522, 525 (1995). Like the circuit court’s dismissal

order, we review the court’s summary judgment ruling de novo. Monson, 2018 IL 122486, ¶ 12.

¶ 25 A. The City’s Counterclaim Against SL Civic

¶ 26 We begin by addressing the circuit court’s dismissal of the City’s counterclaim against

SL Civic, seeking contribution and indemnity for all or a portion of any judgment entered in

favor of Bray. A defendant in a lawsuit may bring a claim against its codefendants by way of a

counterclaim, sometimes referred to as a crossclaim. Indian Harbor Insurance Co. v. MMT

Demolition, Inc., 2014 IL App (1st) 131734, ¶ 34. Section 2-608(a) of the Civil Code provides:

“[a]ny claim by one or more defendants against one or more plaintiffs, or against one or

more codefendants, whether in the nature of setoff, recoupment, cross claim or otherwise,

and whether in tort or contract, for liquidated or unliquidated damages, or for other relief,

may be pleaded as a cross claim in any action, and when so pleaded shall be called a

counterclaim.” 735 ILCS 5/2-608(a) (West 2018).

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In this regard, the defendant who filed a counterclaim against another codefendant is considered

a “plaintiff” or “counterplaintiff,” while the codefendant who responded to that claim is

considered a “defendant” or “counterdefendant.” Barragan v. Casco Design Corp., 216 Ill. 2d

435, 443, 837 N.E.2d 16, 22 (2005).

¶ 27 Contribution and indemnity are the basis of most counterclaims, providing mutually

exclusive remedies for allocating the plaintiff’s damages. Kerschner v. Weiss & Co., 282 Ill.

App. 3d 497, 502 (1996). While contribution apportions the distribution of loss among joint

tortfeasors based on relative degrees of fault, indemnity shifts the entire loss to the joint

tortfeasor who was actually at fault. Id. The Joint Tortfeasor Contribution Act provides there is a

right of contribution among joint tortfeasors who are potentially liable to the injured party, even

though judgment has not yet been entered against any or all of them. 740 ILCS 100/2(a) (West

2016); Ryan v. Yarbrough, 355 Ill. App. 3d 342, 345 (2005). A well-pleaded contribution claim

must allege facts that establish the counterdefendant is liable in tort to the original plaintiff.

Yarbrough, 355 Ill. App. 3d at 345. ¶ 29.

¶ 28 Indemnity, on the other hand, is a common law doctrine that requires a pretort

relationship between the counterplaintiff and counterdefendant and a qualitative distinction

between their conduct. Kerschner, 282 Ill. App. 3d at 503. The right to indemnity may be

express, like in a contractual provision as relevant here, or may be implied in law, arising from

the parties’ conduct. Id. at 502. To be legally sufficient, an indemnity claim must allege a pretort

relationship between the counterplaintiff and the counterdefendant upon which a duty to

indemnity may be predicated. Id. at 504.

¶ 29 In this case, the City’s counterclaim against SL Civic for contribution and/or indemnity

alleged that SL Civic was liable for any negligence to Bray because the permit required it to

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maintain and repair the sidewalk over the vaults where she fell. The City thus had to allege facts

that showed SL Civic had a duty to maintain that sidewalk in a reasonably safe condition, that it

breached that duty by not repairing the purported defect, and that the breach proximately caused

Bray’s injuries. See Marshall, 222 Ill. 2d at 430 (noting the elements of a common-law

negligence action). Whether a duty exists is typically a question of law for the court to decide,

whereas whether a defendant breached its duty and whether the breach was the proximate cause

of the plaintiff’s injuries are generally factual matters for the jury to decide. Id. The existence of

duty likewise depends upon whether the parties stood in such a relationship to one another that

the law imposed an obligation on the defendant to act reasonably for the protection of the

plaintiff. Id. at 436.

¶ 30 After carefully reviewing the record in this case, we believe the circuit court erred in

holding that SL Civic owed no duty of care, statutory or otherwise, to Bray regarding the

maintenance, repair, and/or use of the sidewalk where she fell. As will be shown below, the

scope of SL Civic’s duty was governed by the terms of its permit to use the vaults below the

sidewalk. Because the City and SL Civic correctly agree that the permit constituted an

enforceable contract between them, we apply traditional rules of contract interpretation. See

Block v. Lohan Associates, Inc., 269 Ill. App. 3d 745, 756 (1993) (stating, “[w]hen negligence is

based upon a contractual obligation, the scope of duty is determined by the terms of the

contract”).

¶ 31 A court’s primary objective in construing a contract is to ascertain and give effect to the

parties’ intentions as expressed through the contract’s language. Thompson v. Gordon, 241 Ill. 2d

428, 441 (2011). Additionally, a contract must be construed as a whole, such that each provision

is viewed in light of the other provisions. Id. Where, as here, the words employed in the contract

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are clear and unambiguous, they must be given their plain, ordinary and popular meaning. Id.

Contrarily, if the contract’s language is susceptible to more than one meaning, it is ambiguous.

Id. While a court determines whether a contract is ambiguous as a matter of law, the resolution

of any ambiguity is a question of fact that must be decided by a jury. Pepper Construction Co. v.

Transcontinental Insurance Co., 285 Ill. App. 3d 573, 575-76 (1996).

¶ 32 As set forth above, SL Civic obtained a public way use permit from the City for the

vaults underneath the sidewalk where Bray fell, a copy of which was presented to the court

below. The permit, by its own terms, was “issued and accepted upon the condition that said

vault[s] shall be constructed and maintained in accordance with and subject to all conditions,

stipulations and requirements of the ordinances of the City of Chicago.” Additionally, the permit

stated, in relevant part, that “[p]ermission and authority are hereby given and granted to [SL

Civic], upon the terms and subject to the conditions of this ordinance to maintain and use, as now

constructed, three (3) Vault(s) under the public right-of-way adjacent to its premises known as

20 N. Wacker Dr.” The permit contained a description of each underground vault and

specifically stated, “[t]his grant of privilege in the public way shall be subject to the provisions

of [s]ection 10-28-015 and all other required provisions of the Municipal Code.”

¶ 33 Section 10-28-015(e) of the Municipal Code provides, as relevant here, that “[e]ach

public way use and the structures and appliances authorized by the permit shall be maintained

and used in accordance with all applicable laws, including the ordinances of the city.” Chicago

Municipal Code § 10-28-015(e)(1) (amended Oct. 14, 2021). That section further provides,

“[t]he permittee shall keep that portion of the public way in, over, under or adjacent to the public

way use in good condition and repair, safe for public travel, and free from snow, ice and debris

to the satisfaction of the Commissioner of Transportation.” (Emphases added.) Id. This language

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expressly required SL Civic to keep the public sidewalk “over” the vaults identified in its public

way use permit “in good condition and repair.” Such a requirement is tantamount to a legal duty

of a care.

¶ 34 Here, the circuit court determined that “nothing show[ed] the permit required SL Civic to

maintain the sidewalk above the vaults.” Yet, the court ignored that the permit was “subject to

the provisions of [s]ection 10-28-015 *** of the Municipal Code,” which clearly imposed that

maintenance requirement on SL Civic. While we make no determination as to whether SL Civic

satisfied that requirement, as it is a factual matter for the jury to decide, we conclude that the

City alleged sufficient facts to establish that SL Civic owed a duty of care to Bray with respect to

the maintenance, repair and/or use of the sidewalk over the vaults where she fell.

¶ 35 Having determined that a duty of care was imposed on SL Civic by way of its permit

obligations, we need not reach the parties’ arguments concerning whether a duty either arose

from common law or was voluntarily assumed under the Restatement (Second) of Torts. As

previously stated, if a defendant’s duty stems from a contractual obligation, which is the case

here, then the scope of that duty is limited to the contractual language. See Mickens v. CPS

Chicago Parking, LLC, 2019 IL App (1st) 180156, ¶ 58; Schoondyke v. Heil, Heil, Smart &

Golee, Inc., 89 Ill. App. 3d 640, 643-44 (1980). And because the facts in this case showed SL

Civic owed Bray a duty of care, it could be held liable for negligence. Accordingly, we conclude

that the City stated a viable right to contribution for a portion of any judgment entered in her

favor.

¶ 36 With that in mind, we now turn subsection (e)(6) of section 10-28-015 of the Municipal

Code, providing:

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“the permittee shall indemnify, defend, keep and save harmless the City *** against all

claims, liabilities, judgments, costs, damages and other expenses which may in any way

arise or accrue against, be charged to or recovered from the City *** in consequence of

the permission given by the public way use permit, or any act or thing done or omitted or

neglected to be done by the permittee, its agents or employees in and about the

construction, reconstruction, maintenance, operation, use or removal of the authorized

public way uses and structures or appliances thereof, operation or restoration of the

public way as required, including those arising from any personal injuries or deaths or

damage or destruction of property.” Chicago Municipal Code § 10-28-015(e)(6)

(amended Oct. 14, 2021).

Based on this language, we cannot say that the City failed to state a viable right to indemnity for

a judgment entered in favor of Bray. The City’s counterclaim alleged that SL Civic was liable to

Bray for any negligence because both the permit and Municipal Code imposed a duty on SL

Civic to maintain the sidewalk over the vaults where she fell in a reasonably safe condition, that

SL Civic breached that duty by not repairing the purported defect, and that the breach

proximately caused Bray’s injuries.

¶ 37 Since we already determined there were sufficient facts to establish that SL Civic owed

Bray a duty of care with respect to the sidewalk, the City’s allegations that SL Civic breached

that duty and that the breach proximately caused her injuries, if proven, would entitle the City to

recovery under an indemnity theory. At the very least the City’s allegations, taken as true, are

sufficient to withstand dismissal under a section 2-615 motion. Accordingly, we conclude that

the circuit court erred in dismissing the City’s counterclaim against SL Civic, seeking

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contribution and indemnity for all or a portion of any judgment entered in favor of Bray; thus, we

reverse the court’s judgment dismissing that claim.

¶ 38 B. The City’s Counterclaim Against Lyric Opera

¶ 39 We now address the circuit court’s summary judgment ruling entered in favor of Lyric

Opera. As stated, the City on appeal only challenges the court’s summary judgment ruling with

respect to the contribution count of its counterclaim.

¶ 40 To establish a right to contribution, the City here had to show that Lyric Opera had a duty

to maintain the sidewalk where Bray fell in a reasonably safe condition, that Lyric Opera

breached that duty by not repairing the alleged defect, and that the breach proximately caused

Bray’s injuries. See Guerino v. Depot Place Partnership, 191 Ill. 2d 314, 320 (2000)

(interpreting the Joint Tortfeasor Contribution Act to allow a right of contribution against a party

who was potentially liable in tort to the underlying plaintiff); Marshall, 222 Ill. 2d at 430 (noting

the elements of a common-law negligence action); see also supra ¶¶ 28, 30 (discussing the legal

elements of contribution and negligence claims, respectively). Although the City, as the

nonmovant, was not required to prove its case at the summary judgment stage, it had to present

some factual basis that would arguably entitle it to judgment at trial. Wrobel v. City of Chicago,

318 Ill. App. 3d 390, 397 (2000). In other words, for the City to survive summary judgment, it

had to identify some evidence from which a jury could find that Lyric Opera owed Bray a duty

of care, that it breached that duty, and that the breach proximately causing her injuries. Id.

¶ 41 Here, the circuit court determined that Lyric Opera was entitled to judgment as a matter

of law because none of the evidence presented showed that Lyric Opera either “assumed control

over the City sidewalk area at issue” or was obligated “to maintain or repair the concrete

sidewalk above the vaults” to give rise to a duty of care. We disagree. As set forth above, the

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lower court was presented with a copy of Lyric Opera’s lease agreement with SL Civic. See

supra ¶ 17. Section 6.3 of that agreement expressly required Lyric Opera to “comply with all

Laws,” including those set forth in the Municipal Code, a compilation of City laws. See City of

Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc., 196 Ill. 2d 1,

22-23 (2001) (noting that City ordinances are law).

¶ 42 Section 10-28-540 of the Municipal Code provides, as relevant here, that “[e]very person

using the space under any sidewalk shall at his own expense and at all times keep such sidewalk

in good and safe condition and repair and clear and free from all snow, ice, dirt, filth or other

obstructions or encumbrances.” Chicago Municipal Code § 10-28-540 (amended Nov. 9, 2016).

In addition, the Municipal Code defines “ ‘Subsidewalk Space Use’ ” as “the use of any

subsidewalk space, or the construction or maintenance of any structure thereunder, or disturbing

the sidewalk on the public way, for the purpose of constructing or maintaining any vault or

structure thereunder, or any coalhole, trapdoor or other opening therein or thereon.” Chicago

Municipal Code § 10-28-010(a) (amended July 21, 2021). This language clearly required Lyric

Opera, who admitted to using the vaults located in “the space under” the sidewalk where Bray

fell, to “keep such sidewalk in good and safe condition and repair.”

¶ 43 Lyric Opera, nonetheless, argues in its appellate brief that these provisions do not apply

to it because, unlike SL Civic, it never used the vault space “for the purpose of constructing or

maintaining” the vaults. This argument does not hold water since Lyric Opera was obligated to

maintain the vaults under the terms of its lease agreement with SL Civic. As previously stated,

the lease agreement contained an anti-leak provision that stated Lyric Opera was responsible for

installing “any membrane it require[d] to prevent leakage from sidewalks above any below-

ground vault area it may be using for storage or equipment or other purposes.” Furthermore,

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Lyric was responsible “for removing and replacing any such sidewalk to install a membrane to

prevent and stop leakage.” Because this language provided that Lyric Opera, not SL Civic, was

legally responsible for any water intrusion into the vaults underneath the sidewalk, the language

effectively obligated Lyric Opera to maintain those vaults in order to prevent such an intrusion.

¶ 44 That being said, we reject Lyric Opera’s assertion that even if it was required to maintain

the vaults under the Municipal Code, it cannot be held liable for Bray’s injuries because the

City’s duty of care regarding the sidewalk was nondelegable. Lyric Opera already agreed to

remove or replace “any such sidewalk to install a membrane” if necessary to prevent water

leakage inside the vaults, thereby essentially forfeiting any claim that the City was solely

responsible for maintaining and repairing the sidewalk. Simply put, Lyric Opera cannot

challenge the legality of its lease and Municipal Code obligations when it agreed to comply with

them.

¶ 45 For the same reasons, we reject Lyric Opera’s attempts to avoid its maintenance

obligations under the relevant Municipal Code provisions on the basis that those provisions

cannot subject it to private tort liability because they were intended to benefit the City, not the

public. But cf. Thiede v. Tambone, 196 Ill. App. 3d 253, 259-60 (1990) (finding the city

ordinance did not impose a duty of care on the owner of a property abutting the public sidewalk

to maintain and repair that sidewalk where the ordinance was intended to benefit the

municipality, not the public); Summers v. City of Springfield, 33 Ill. App. 3d 474, 476 (1975)

(similar); Klikas v. Hanover Square Condominium Ass’n, 240 Ill. App. 3d 715, 719-20 (1992)

(similar); Gilmore v. Powers, 403 Ill. App. 3d 930, 939 (2010) (similar). Lyric Opera agreed to

comply with the Municipal Code provisions in exchange for using the vaults under the sidewalk

where Bray fell, and incidentally, Lyric Opera benefitted from such use.

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¶ 46 Under the circumstance in this case and taking the facts in the light most favorable to the

City, as we must, we cannot say as a matter of law that Lyric Opera owed no duty of care to Bray

regarding the maintenance, repair, and/or use of the sidewalk where she fell or that it cannot be

held liable to her for negligence. Whether Lyric Opera breached that duty, and if so, whether the

breach proximately caused Bray’s injuries are matters for the jury to decide. In any event,

summary judgment should not have been granted to Lyric Opera in this case because the City

presented sufficient evidence that could arguably entitle it to recovery under a contribution

theory. We therefore reverse the circuit court’s summary judgment ruling entered in favor of

Lyric Opera on the contribution count of the City’s counterclaim against it.

¶ 47 Because we again determined that a duty of care arose based on contractual obligations,

i.e., Lyric Opera’s lease and Municipal Code obligations, we need not address whether a

common law duty likewise arose. See Mickens, 2019 IL App (1st) 180156, ¶ 58 (noting that

where, as here, a duty stems from a contractual obligation, then the scope of that duty is limited

to the contractual language); Schoondyke, 89 Ill. App. 3d at 643-44 (same).

¶ 48 CONCLUSION

¶ 49 For the foregoing reasons, we reverse the circuit court’s judgment dismissing with

prejudice the City’s counterclaim against SL Civic, seeking contribution and indemnity for all or

a portion of any judgment entered in favor of Bray. In addition, we reverse the circuit court’s

summary judgment ruling entered in favor of Lyric Opera on the contribution count of the City’s

counterclaim. The circuit court’s summary judgment ruling entered in favor of Lyric Opera on

the indemnity count of the City’s counterclaim is affirmed. We remand for further proceedings

consistent with our disposition.

¶ 50 Affirmed in part and reversed in part; cause remanded.

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Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2017-L-6402; the Hon. Arnette R. Hubbard, Judge, presiding.

Attorneys Celia Meza, Corporation Counsel, of Chicago (Benna Ruth for Solomon, Myriam Zreczny Kasper, and Elizabeth Mary Tisher, Appellant: Assistant Corporation Counsel, of counsel), for appellant.

Attorneys Dan Alexander and Mike Mayerck, of Maron Marvel Bradley for Anderson & Tardy LLC, of Chicago, for appellee SL Civic Appellee: Wacker, LLC.

Kurt E. Olsen, of Krakar & Olsen, of Chicago, for other appellee.

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