Foy v. Vill. of La Grange
| Decision Date | 06 November 2020 |
| Docket Number | No. 1-19-1340,1-19-1340 |
| Citation | 446 Ill.Dec. 249,169 N.E.3d 1106,2020 IL App (1st) 191340 |
| Parties | James FOY, Plaintiff-Appellant, v. The VILLAGE OF LA GRANGE, Illinois, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Brion W. Doherty and Dominic C. LoVerde, of Motherway & Napleton LLP, of Chicago, for appellant.
Michael R. Hartigan, of Hartigan & O'Connor P.C., of Chicago, for appellee.
¶ 1 The plaintiff-appellant, James Foy, brought a negligence action against the defendant-appellee, the Village of La Grange (Village). The trial court entered summary judgment in favor of the Village. Mr. Foy now appeals. For the following reasons, we affirm the judgment of the circuit court of Cook County.
¶ 3 On June 5, 2017, at approximately 6 p.m., Mr. Foy was walking home on the sidewalk along North Park Road in the Village (sidewalk). The sidewalk is owned and maintained by the Village. As Mr. Foy was walking in the middle of the sidewalk, he tripped on a raised sidewalk slab, or what he referred to as a "raised deviation" between the sidewalk slabs (the sidewalk deviation). He guessed that the sidewalk deviation was caused by tree roots underneath the sidewalk. When Mr. Foy tripped and fell, he broke his right wrist and fractured his left rib.
¶ 4 On May 9, 2018, Mr. Foy filed a complaint against the Village, alleging that the Village was negligent in maintaining the sidewalk. The Village moved for summary judgment, alleging that they owed no duty for a de minimis condition.1 The Village argued that, in the alternative, the condition on the sidewalk was open and obvious and so the Village owed no duty of care to Mr. Foy. The Village also argued that, even if a duty existed, Mr. Foy did "not meet his burden of showing actual or constructive notice of this inconspicuous sidewalk defect."
¶ 5 Mr. Foy testified, in a deposition for the case, that at the time of the accident, it was still light out, he was not distracted as he was walking, and he had "no trouble seeing where [he] [was] going." The following exchange ensued:
¶ 6 After Mr. Foy fell, he laid on the ground for a few minutes. His friend and neighbor, Jeff White, was walking in his driveway nearby and ran over to check on Mr. Foy. When Mr. Foy stood up, he saw "the raised sidewalk" on which he had tripped. Mr. Foy walked home, took some Tylenol
, and laid down. He did not seek immediate medical attention. The next day, he felt a lot of pain all over his body, but especially in his wrist and rib. Later that same day, he went to the emergency room. In the emergency room, X-rays revealed that his right wrist was broken and his left rib was fractured. His medical bills for treatment totaled $5449.
¶ 7 Following the accident, Mr. Foy took several photographs of the sidewalk where he tripped. Although he did not include any measuring sticks in the photographs, he testified that the height variance between the sidewalk slabs at the deviation measured between two and three inches. When asked about photographs of the sidewalk deviation taken by the Village, which showed the height variance measured an inch and a half, Mr. Foy responded that the Village's measurements were inaccurate because "the measuring stick [was] on top of the dirt."
¶ 8 Mr. Foy's friend and neighbor, Mr. White, testified via affidavit. Mr. White testified that he lived at 67 North Park Road in the Village and that Mr. Foy tripped and fell in front of his home. He did not observe the fall, but he understood "that [Mr. Foy] attributed his fall to an approximate two inch * * * displacement at the expansion joint between the sidewalk slabs near the parkway tree in front of our home."2
¶ 9 Ryan Gillingham, the Village's director of public works, also testified in a deposition. He testified that he is responsible for the Village's sidewalks. A week after Mr. Foy's accident, he went to the sidewalk and measured the sidewalk deviation. It measured between 1.5 and 1.75 inches. He said it was likely caused by tree roots. He testified that the deviation in the sidewalk was not uncommon in the Village and that there was nothing "particularly unusual" about it. Looking at a picture of the sidewalk deviation, Director Gillingham rated it a "Condition 5" on a scale of 6, mainly due to the joint displacement of the sidewalk slabs. Director Gillingham did not know how long the sidewalk deviation had existed. He explained that, generally, sidewalks in the Village are only inspected for improvement when there is street construction.
¶ 10 A hearing on the Village's motion for summary judgment commenced. The parties did not make any oral arguments but instead relied upon their briefs on the motion. In its brief, the Village gave three alternative arguments as to why summary judgment was appropriate. First, the Village argued that the sidewalk deviation was a de minimis defect for which it had no duty to repair. The Village alternatively argued that the sidewalk deviation that Mr. Foy tripped on was open and obvious and so the Village owed Mr. Foy no duty of care. Specifically, the Village claimed that "there is no dispute regarding the visibility of the identified sidewalk defect" and so the open and obvious rule precluded Mr. Foy's negligence action. And finally, the Village argued that, even if it had a duty regarding the sidewalk deviation, it did not have actual or constructive notice of it.
¶ 11 In his brief opposing summary judgment, Mr. Foy argued that a genuine issue of material fact existed as to the height of the sidewalk deviation and so summary judgment on the Village's de minimis argument would be improper. He argued that, for the same reason, a genuine issue of material fact also existed regarding whether the sidewalk deviation was open and obvious. Mr. Foy further argued that a genuine issue of material fact existed as to whether the Village had constructive notice of the sidewalk deviation.
¶ 12 At the conclusion of the hearing, the trial court granted the Village's motion for summary judgment, dismissing Mr. Foy's negligence action. Although the trial court rejected the Village's de minimis argument because a question of fact existed as to the height of the sidewalk deviation, the trial court found in favor of the Village on its open and obvious argument. The trial court found that there was no issue of fact that the sidewalk contained a visible defect with the raised deviation. The trial court stated:
"And in my review of the facts including the photographs of the condition and [Mr. Foy's] testimony, that if he had been looking at the sidewalk he would have seen it, I find that as a matter of law it is open and obvious."
¶ 13 The trial court still considered the Village's duty of care owed to Mr. Foy. The trial court found that the fact that the sidewalk deviation was open and obvious, the fact that the risk of injury was minimal, and the fact that the Village had "miles and miles of sidewalk" to maintain all weighed in favor of no duty imposed on the Village. The trial court concluded by noting that the two exceptions to the open and obvious rule did not apply since it was light out at the time of the accident and there were no obstructions that prevented Mr. Foy from seeing the sidewalk deviation.
¶ 14 The trial court additionally found that Mr. Foy failed to raise any genuine issue of material fact regarding whether the Village had the required notice of the sidewalk deviation and so the trial court granted summary judgment on that basis, as well.
¶ 15 The trial court then entered an order granting summary judgment in favor of the Village and dismissing the case "for reasons stated on the transcribed record." Mr. Foy filed a motion to reconsider, which the trial court denied. This appeal followed.
¶ 17 We note that we have jurisdiction to review this case, as Mr. Foy filed a timely notice of appeal following the trial court's judgment denying his motion to reconsider. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. July 1, 2017).
¶ 18 Mr. Foy presents the following sole issue: whether the trial court erred in granting summary judgment in favor of the Village.
¶ 19 The purpose of summary judgment is to determine if a genuine question of material fact exists. Adams v. Northern Illinois Gas Co. , 211 Ill. 2d 32, 42-43, 284 Ill.Dec. 302, 809 N.E.2d 1248 (2004). Summary judgment should be granted only where the pleadings, depositions, admissions, and affidavits on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue as to any material fact and that the moving party is clearly entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2018); Adams , 211 Ill. 2d at 43, 284 Ill.Dec. 302, 809 N.E.2d 1248. "Although summary judgment is to be encouraged as an expeditious manner of disposing of a lawsuit, it is a drastic measure and should be allowed only where the right of the moving party is clear and free from doubt." Wells Fargo Bank, N.A. v. Norris , 2017 IL App (3d) 150764, ¶ 19, 416 Ill.Dec. 208, 83 N.E.3d 1045. We review appeals from summary judgment rulings de novo . Id.
¶ 20 Mr. Foy argues that a genuine issue of material fact exists in this case as to: (1) whether the sidewalk deviation was open and obvious; and (2) whether the Village had constructive notice. As the open and obvious issue is dispositive, we turn to it first.
¶ 21 In a negligence action, the plaintiff must plead and prove the existence of a duty owed by the...
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