{
  "id": 2673896,
  "name": "Glen M. Gowler, Plaintiff-Appellant, v. The City of Mt. Vernon, Illinois, Defendant-Appellee",
  "name_abbreviation": "Gowler v. City of Mt. Vernon",
  "decision_date": "1972-09-07",
  "docket_number": "No. 71-21",
  "first_page": "466",
  "last_page": "468",
  "citations": [
    {
      "type": "official",
      "cite": "7 Ill. App. 3d 466"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "281 N.E.2d 659",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "51 Ill.2d 274",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        5392724
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-2d/51/0274-01"
      ]
    },
    {
      "cite": "282 N.E.2d 437",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "51 Ill.2d 357",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        5391966
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-2d/51/0357-01"
      ]
    }
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  "analysis": {
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    "char_count": 5206,
    "ocr_confidence": 0.703,
    "pagerank": {
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    "simhash": "1:032f011d7aa594d2",
    "word_count": 878
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  "last_updated": "2023-07-14T16:18:17.074050+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Glen M. Gowler, Plaintiff-Appellant, v. The City of Mt. Vernon, Illinois, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE EBERSPACHER\ndelivered the opinion of the court:\nThis is an appeal from the dismissal of the plaintiff-appellant\u2019s complaint, alleging in Count I that the defendant-appellee owned, maintained and controlled property used as a City Dump, that through its negligent conduct, specified in Paragraph 5A-E, dirt had been dropped and scattered on a pubfic highway, and that the plaintiffs automobile was caused to skid on the muddy surface and to collide with another vehicle, causing injury to the plaintiff; and alleging in Count II that the same facts had occurred, but that the injuries were caused by defendant\u2019s willful and wanton conduct, specified in Paragraph 6A-C.\nDefendant filed a motion to dismiss the complaint. In Paragraph 9 of the motion, defendant referred to IH. Rev. Stat. ch. 85, sec. 3 \u2014 102, and the absence of any aHegations in the complaint that the defendant had actual or constructive notice of the fact that the manner of its use of the property was not reasonably safe. In Paragraph 10, defendant referred to IH. Rev. Stat. ch. 85, sec. 3 \u2014 108, and the limitation of liability on the part of a local public entity for its failure to supervise activity on or the use of any public property. In Paragraph 11, defendant referred to Ill. Rev. Stat. ch. 85, secs. 8 \u2014 102 and 8 \u2014 103, and the failure of the complaint to allege that notice was given within six months from the date that the injury or cause of action was received or accrued.\nPlaintiff filed a motion to strike Paragraphs 7 \u2014 11 of the defendant\u2019s motion to dismiss and attached, as an exhibit, an insurance policy covering the defendant for the type of occurrence alleged in the complaint. The trial court denied plaintiffs motion to strike and granted defendant\u2019s motion to dismiss as to Paragraphs 9 through 11.\nPlaintiff argues that, when a poficy of insurance against loss or liability has been issued to a local public entity, Ill. Rev. Stat. ch. 85, sec. 9\u2014 103 (b) effects a waiver of any defenses available to the local public entity under chapter 85. Our Supreme Court recently decided the same issue in Housewright v. City of LaHarpe (1972), 51 Ill.2d 357, 282 N.E.2d 437. After reviewing a number of appellate decisions to the contrary, the Court held, at 442:\n\u201cFor the reason that the defense or immunity which results from fafiure to comply with section 8 \u2014 102 exists solely because of that section of the Governmental Employees Tort Immunity Act and because it is not excepted from the \u2018immunity from suit by reason of the defenses and immunities provided in this Act\u2019 provided in section 9 \u2014 103 (b), we hold that the fafiure to give notice in accordance with section 8 \u2014 102 is subject to the waiver provision of section 9 \u2014 103 (b).\u201d\nIn that case, the plaintiffs had aHeged in their complaint that the defendant city had contracted for insurance against the Mability sought to be imposed by their action.\nFurthermore, in Sullivan v. Midlothian Park Dist. (1972), 51 Ill.2d 274, 281 N.E.2d 659, our Supreme Court also considered whether section 9\u2014 103(b) effects a waiver of the provision of section 3 \u2014 106 that a local public entity is not liable for any injury unless it was guilty of willful and wanton negligence. In holding that section 9 \u2014 103(b) effected a waiver, the Court stated:\n\u201c[T]he provision of section 3 \u2014 106 * * * is clearly a defense or immunity provided in the Act and is obviously what is contemplated by the waiver in section 9 \u2014 103 (b) of the right to deny liability by reason of the non-liability of the insured public entity for the wrongful or neglect acts of itself or its employees and its immunity from suit by reason of the defenses and immunities provided in this Act\u2019.\u201d\nIn that case, Count I had alleged mere negligence against the Park District and specifically alleged the existence of public liability insurance.\nIn the present case, in ruling on the propriety of the trial court\u2019s order, we must accept plaintiff\u2019s allegation contained in the motion to strike that a policy of insurance was in effect for the type of occurrence alleged in the complaint. Our decision must also go somewhat beyond the specific holdings in Housewright and Sullivan with regard to sections 8 \u2014 102 and 3 \u2014 106. Even though not argued in the briefs, the defendant had relied upon other defenses contained in chapter 85, secs. 3 \u2014 102 and 3 \u2014 108, and the trial court had referred to them in dismissing the complaint. Since the defenses which result from sections 3 \u2014 102 and 3\u2014 108 exist solely because of those sections of the Governmental Employees Tort Immunity Act, we find the holding of Housewright applicable, and those defenses likewise waived.\nAccordingly, the decision of the trial court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.\nG. MORAN, P. J., and CREES, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE EBERSPACHER"
      }
    ],
    "attorneys": [
      "Hanagan, Dousman & Giamanco, of Mt. Vernon, for appellant.",
      "Wagner, Conner, Ferguson, Bertrand & Baker, of Belleville, and G. W. Howard III, of Mt. Vernon, (Francis D. Conner, of counsel,) for appellee."
    ],
    "corrections": "",
    "head_matter": "Glen M. Gowler, Plaintiff-Appellant, v. The City of Mt. Vernon, Illinois, Defendant-Appellee.\n(No. 71-21;\nFifth District\nSeptember 7, 1972.\nHanagan, Dousman & Giamanco, of Mt. Vernon, for appellant.\nWagner, Conner, Ferguson, Bertrand & Baker, of Belleville, and G. W. Howard III, of Mt. Vernon, (Francis D. Conner, of counsel,) for appellee."
  },
  "file_name": "0466-01",
  "first_page_order": 488,
  "last_page_order": 490
}