Burns v. City of Chi.

• Decision Date: 19 July 2016
• Docket Number: No. 1–15–1925.,1–15–1925.
• Parties: Lloyd BURNS, Plaintiff–Appellant, v. The CITY OF CHICAGO, a Municipal Corporation, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

59 N.E.3d 846
406 Ill.Dec. 68

Lloyd BURNS, Plaintiff–Appellant,
v.
The CITY OF CHICAGO, a Municipal Corporation, Defendant–Appellee.

No. 1–15–1925.

Appellate Court of Illinois, First District, Second Division.

July 19, 2016.

59 N.E.3d 849

James E. Ocasek, of Cooney & Conway, of Chicago, for appellant.

Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Sara K. Hornstra, Assistant Corporation Counsel, of counsel), for appellee.

OPINION

Justice HYMAN delivered the judgment of the court, with opinion.

406 Ill.Dec. 71

¶ 1 This is a trip and fall case involving a crosswalk with a surface in compliance with Americans with Disabilities Act requirements. Plaintiff Lloyd Burns alleges the defendant City of Chicago (i) negligently installed the ADA sensory tiles; (ii) failed to inspect the area of sidewalk where he tripped; (iii) failed to repair that portion of sidewalk; and (iv) failed to warn him of the dangerous nature of the sensory tiles. After the trial court dismissed Burns' allegations with regard to failure to warn, the City moved for and was granted summary judgment. Burns challenges these rulings.

¶ 2 We affirm, finding (i) exposure of the raised ADA sensory tiles was de minimis; (ii) the trial court properly dismissed Burns' failure to warn allegations; (iii) the City lacked constructive notice of the raised tiles; and (iv) the tiles were an open and obvious condition.

¶ 3 BACKGROUND

¶ 4 The ADA directs municipalities to install detectable warning surfaces at crosswalks to provide a sensory cue to visually impaired individuals of where a sidewalk ends and a roadway begins. ADA Compliance Guide ¶ 446 (Thompson Information Services 2014). ADA sensory tiles consist of truncated domes aligned in a square or radial grid pattern laid on top of fresh concrete. New sidewalk construction and reconstruction of existing sidewalks must meet ADA standards. The concrete foundation can last up to 15 years and the tiles wear out in 5 to 10 years. Michael Drake, the general superintendent of the City's department of transportation, testified the tiles can be pushed out of alignment with the sidewalk when trucks drive over them or if an individual attempts to remove the metal screws securing the tiles to the cement foundation.

¶ 5 The City annually installs tiles in 2500 to 3000 new locations. The City

406 Ill.Dec. 72

59 N.E.3d 850

maintains existing tiles through the 311 system, which is initiated when an individual calls and reports a defect in a tile. In January 2010, the City installed tiles at the intersection of North Parkside Avenue and West North Avenue. Photographs on the Google Maps website from June 2011 show the tiles were not raised.

¶ 6 On August 15, 2012, around 6 p.m., Burns was walking home on West North Avenue and reached the intersection of North Parkside Avenue. There was “medium” light at the time, it was raining, and Burns did not have a raincoat or an umbrella. Traffic was light. Burns tripped and fell over the tiles at the intersection and was injured. Burns confirmed in his deposition that he crosses this intersection at least once a week and had never noticed the condition of the tiles before he tripped. Burns testified he was not distracted when he approached the intersection and was watching the traffic as he tripped.

¶ 7 Although Burns did not see what he tripped on before he fell, afterwards he noticed the tiles were raised above the sidewalk level. In his deposition, Burns estimated the difference was 1 ½ inches. Burns' counsel took photographs of the tiles and the adjacent sidewalk. One photograph using a ruler indicates the tiles Burns tripped over were raised three-fourths of an inch above the sidewalk.

¶ 8 Burns filed a two-count complaint against the City and Arrow Road Construction. The count against Arrow was later dismissed by agreement. In his second amended complaint, Burns alleged the City (i) negligently installed the tiles; (ii) failed to inspect the area of sidewalk where he tripped; (iii) failed to repair that portion of sidewalk; and (iv) failed to warn him of the dangerous nature of the tiles.

¶ 9 The City moved to dismiss Burns' failure to warn claim under section 2–619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2–619(a)(9) (West 2012)), arguing that it was precluded from liability for its failure to provide barricades or warning signs in pedestrian areas under section 3–104 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/3–104 (West 2012) ). The trial court granted the motion.

¶ 10 Burns filed a third amended complaint, adding an additional claim under the doctrine of res ipsa loquitor. Burns alleged the City was liable for his injuries because his tripping over the tiles constituted an unusual and unexpected result, which does not ordinarily occur absent negligence on the part of the City.

¶ 11 The City moved for summary judgment under section 2–1005(c) of the Code (735 ILCS 5/2–1005(c) (West 2012)), arguing (i) the complained-about condition was de minimis; (ii) the City had neither actual nor constructive notice of the condition; and (iii) the condition was open and obvious. The trial court granted summary judgment.

¶ 12 Burns challenges the orders granting the City's motion to dismiss and motion for summary judgment. He argues that (i) the tiles are warning devices; (ii) the raised tiles were not a de minimis condition; (iii) the City had constructive notice of the raised tiles; and (iv) the City owed Burns a duty because the raised tiles were open and obvious.

¶ 13 STANDARD OF REVIEW

¶ 14 This court reviews ruling on a motion to dismiss under section 2–619de novo. 735 ILCS 5/2–619 (West 2012) ; Bjork v. O'Meara, 2013 IL 114044, ¶ 21, 369 Ill.Dec. 313, 986 N.E.2d 626. Section 2–619(a)(9) provides for involuntary dismissal when affirmative matter avoids the legal effect of or defeats the claim asserted

406 Ill.Dec. 73

59 N.E.3d 851

against the defendant. 735 ILCS 5/ 2–619(a)(9) (West 2012); Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31, 364 Ill.Dec. 40, 976 N.E.2d 318 (“A section 2–619 motion to dismiss admits the sufficiency of the complaint, but asserts a defense outside the complaint that defeats it.”). In reviewing a section 2–619(a)(9) dismissal, this court construes all pleadings and supporting documents in the light most favorable to the nonmoving party, here, plaintiff. Bjork, 2013 IL 114044, ¶ 21, 369 Ill.Dec. 313, 986 N.E.2d 626.

¶ 15 We also review a summary judgment ruling de novo. Abrams v. City of Chicago, 211 Ill.2d 251, 258, 285 Ill.Dec. 183, 811 N.E.2d 670 (2004). In considering summary judgment, we determine whether a genuine issue of material fact exists and whether the moving party will prevail solely as a matter of law. Adams v. Northern Illinois Gas Co., 211 Ill.2d 32, 42–43, 284 Ill.Dec. 302, 809 N.E.2d 1248 (2004). The court does not try issues of fact, but must ascertain if any exist. Gilbert v. Sycamore Municipal Hospital, 156 Ill.2d 511, 517, 190 Ill.Dec. 758, 622 N.E.2d 788 (1993). The trial court may grant summary judgment where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2–1005(c) (West 2012); Negron v. City of Chicago, 2016 IL App (1st) 143432, ¶ 13, 404 Ill.Dec. 13, 55 N.E.3d 109. We may affirm the trial court's ruling on any basis appearing in the record. People v. Olsson, 2015 IL App (2d) 140955, ¶ 17, 393 Ill.Dec. 869, 35 N.E.3d 641 (appellate court reviews trial court's judgment rather than its reasoning).

¶ 16 ANALYSIS

¶ 17 De Minimis Defect

¶ 18 Burns asserts that a genuine issue of material fact exists as to whether the defect was de minimis. Specifically, Burns identifies differences in the construction materials for the tiles and sidewalk and that the tiles are mounted at a slight incline. Although Burns does not have to prove his case at the summary judgment stage, he must present evidentiary facts to support the elements of his cause of action. Richardson v. Bond Drug Co. of Illinois, 387 Ill.App.3d 881, 885, 327 Ill.Dec. 240, 901 N.E.2d 973 (2009).

¶ 19 In a negligence claim, plaintiff alleges the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and that breach was a proximate cause of plaintiff's injuries. Krywin v. Chicago Transit Authority, 238 Ill.2d 215, 225, 345 Ill.Dec. 1, 938 N.E.2d 440 (2010) ; Negron v. City of Chicago, 2016 IL App (1st) 143432, ¶ 14, 404 Ill.Dec. 13, 55 N.E.3d 109. Whether a duty of care exists presents a question of law for the court to decide. Rhodes v. Illinois Central Gulf R.R., 172 Ill.2d 213, 227, 216 Ill.Dec. 703, 665 N.E.2d 1260 (1996).

¶ 20 Under Illinois law, a municipality has a duty to “exercise ordinary care to maintain its property in a reasonably safe condition” (745 ILCS 10/3–102(a)...