Heath v. City of Naperville

• Court: Appellate Court of Illinois
• Writing for the Court: JUSTICE DAVENPORT
• Citation: Heath v. City of Naperville, 2024 IL App (3d) 230663, 263 N.E.3d 563 (Ill. App. 2024)
• Docket Number: Appeal No. 3-23-0663
• Decision Date: 06 September 2024
• Parties: Sharon HEATH and Tim Heath, Plaintiffs-Appellants, v. The CITY OF NAPERVILLE, Marcus Bishel, and Susan Bishel, Defendants (The City of Naperville, Defendant-Appellee).

263 N.E.3d 563

2024 IL App (3d) 230663

Sharon HEATH and Tim Heath, Plaintiffs-Appellants,

v.The CITY OF NAPERVILLE, Marcus Bishel, and Susan Bishel, Defendants

(The City of Naperville, Defendant-Appellee).

Appeal No. 3-23-0663

Appellate Court of Illinois, Third District.

Filed September 6, 2024

Appeal from the Circuit Court of the 18th Judicial Circuit, Du Page County, Illinois, Circuit No. 21-L-390, Honorable Timothy J. McJoynt, Judge, Presiding.

R. Mark Maritote, of Hanover Park, and Timothy W. Heath, of Heath & Heath, P.C., of Naperville, for appellants.

Kristen Toberman, of City of Naperville, of Naperville, for appellee.

OPINION

JUSTICE DAVENPORT delivered the judgment of the court, with opinion.

¶ 1 In April 2021, plaintiffs—Sharon Heath (Sharon) and Tim Heath (Tim)— sued defendants—the City of Naperville (City), Marcus Bishel, and Susan Bishel (Susan)—after Sharon tripped and fell on an uneven sidewalk in front of the Bishels’ home in Naperville. The City moved for summary judgment. Relying on section 3-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-102 (West 2020)), the City asserted (1) the Heaths had not established the City’s actual or constructive notice of the sidewalk’s condition (id. § 3-102(a)) and (2) the City did not discover the sidewalk’s condition though it maintained and operated with due care a reasonably adequate inspection system (id. § 3-102(b)). The circuit court found the Heaths failed to establish the City had notice of the uneven sidewalk and, accordingly, entered judgment in the City’s favor.

¶ 2 The Heaths appeal, and we reverse and remand for further proceedings.

¶ 3 I. BACKGROUND

¶ 4 On May 24, 2020, Sharon left her home at around 10 a.m. to go for a walk. A short distance from her home, she tripped over a height differential between uneven sidewalk sections (defect) in front of the Bishels’ home on Villanova Drive. Sharon fell to the ground, fracturing her left wrist and bruising and scraping her right knee and elbow. About a week later, she underwent surgery to repair her fractured wrist.

¶ 5 A. Plaintiffs’ Complaint

¶ 6 In April 2021, the Heaths sued the City and the Bishels. (The Bishels are no longer parties to this action.) The Heaths alleged the City violated its duty to maintain the sidewalk in a reasonably safe condition by (1) failing “to properly maintain the sidewalk so that it became loose, uneven[,] and broken”; (2) failing “to mark or warn of the loose[,] uneven[,] and broken sidewalk”; and (3) failing “to have a proper inspection system to notify [the City] its property was in an unreasonably unsafe condition.” They asserted the City knew or should have known of the sidewalk’s unsafe condition. Sharon sought money damages for her injuries. Tim sought money damages for loss of consortium and the medical bills for which he was responsible under section 15 of the Rights of Married Persons Act (750 ILCS 65/15 (West 2020)).

¶ 7 B. The City’s Answer and Affirmative Defenses

¶ 8 The City answered the complaint and asserted two affirmative defenses. Relevant here, the City asserted it was immune from suit under section 3-102(b) of the Act (745 ILCS 10/3-102(b) (West 2020)) because it maintained and operated with due care a reasonably adequate inspection system for its sidewalks but did not discover the defect.

¶ 9 C. Discovery

¶ 10 During discovery, the parties deposed several witnesses: (1) Sharon; (2) Tim; (3) Sharon and Tim’s son, Liam Heath; (4) Susan Bishel; (5) Chris Nichols, a project engineer in the City’s Transportation, Engineering, and Development (TED) department; (6) Marcus Marino, an inspector in the City’s TED department; (7) Yifang Lu, a former project engineer and current deputy city engineer; (8) Sandy Scarim, the City’s forestry department field supervisor; and (9) Fred Girard, the City’s public works operations supervisor. The depositions established the following.

¶ 11 1. The City’s Maintenance Programs

¶ 12 The City has approximately 900 miles of sidewalk within its boundaries. The City operates programs that involve sidewalk inspections. However, only one of those programs—the sidewalk repair and replacement program—is dedicated to recognizing and repairing or replacing unsafe conditions on City sidewalks. Under this program, the City adopted a policy in which it repairs or replaces sidewalk sections when any one of the following conditions is present: (1) a height differential of at least one inch between adjacent sections, (2) a breakage within a section, causing it to split into three or more pieces, or (3) deterioration (such as by spalling) of at least half of a section’s surface.

¶ 13 a. The Sidewalk Repair and Replacement Program

¶ 14 The sidewalk repair and replacement program is “not systematic.” It does not consist of inspectors walking along the City’s sidewalks on set intervals, looking for unsafe conditions. Rather, the program is driven by requests and complaints from the public. The City advertises the program on its website, on its social media accounts (including its Facebook page), and possibly on flyers mailed with utility bills. The City receives many requests and complaints each year, both by telephone and electronic communication.

¶ 15 When the City receives a request or complaint, an inspector visually inspects the sidewalk to determine whether it meets the City’s repair and replacement criteria. Generally, the inspector measures a height differential if it appears close to an inch or more. And if the inspection is made pursuant to a trip-and-fall report, the inspector measures all height differentials in the relevant area. If the measurement confirms the sidewalk meets the height-differential criterion, the inspector marks the sidewalk section or sections so the City’s public works department can place a temporary asphalt ramp to eliminate the differential. The inspector also marks the sidewalk for replacement in the following annual replacement cycle.

¶ 16 The program’s reliance on requests and complaints makes it “very efficient,” as it would otherwise be impossible for the City’s five TED inspectors to check all 900 miles each year or every few years. The TED inspectors each spend 20% or more of their time inspecting sidewalks. Together, they inspect “thousands” of feet of sidewalks each year.

¶ 17 b. Road Resurfacing Programs

¶ 18 The City operates three road-resurfacing programs that involve sidewalk inspections: the microresurfacing program, the motor-fuel-tax-funded resurfacing program, and the city-funded resurfacing program. Under the microresurfacing program, the City lays a thin layer of asphalt over existing roadways. As part of the process, the City inspects the sidewalks at street corners to ensure the sidewalk-to-street connections are “up to current compliance and code” and do not meet the City’s sidewalk repair and replacement criteria.

¶ 19 Under the motor-fuel-tax-funded and city-funded resurfacing programs (which we will refer to collectively as the macroresurfacing program¹), a road is resurfaced once it reaches the end of its “life cycle,” approximately every 15 to 20 years. Each year, the City selects which roads will be resurfaced in the following year. Before resurfacing begins, a TED inspector inspects the sidewalks and curbs adjacent to the roadway, looking for the presence of the repair and replacement criteria. The inspector marks the sidewalk for replacement if an area meets one of the criteria.

¶ 20 The City also operates a roadway patching and crack-filling program. Under this program, City employees drive along City roads looking for potholes and cracks that need repair. The program does not include sidewalk inspections.

¶ 21 c. Tree-Trimming and Brush-and Leaf-Pickup Programs

¶ 22 The City also operates the parkway tree-trimming program and the brush-and leaf-pickup programs. These programs involve employees or contractors working near City sidewalks. Under the parkway tree-trimming program, the trees along each street are trimmed on a seven-year cycle. The City implemented its first seven-year cycle in 2017 or 2018. Independent of the seven-year cycle, the City inspects and trims parkway trees upon request. Scarim—the forestry department field supervisor—was not informed of the City’s sidewalk repair and replacement criteria or otherwise trained to recognize unreasonably dangerous sidewalk conditions. Both forestry department employees and contractors trim parkway trees. Neither is directed to report dangerous sidewalk conditions. However, Scarim has made such reports to the TED department and received such reports from his employees.

¶ 23 The City operates brush-and leafpickup programs in the spring and fall, respectively. The brush-pickup program runs for five weeks, and City contractors pick up brush at each house once. The contractors use grapple trucks to collect brush that residents put by the curb. (The record does not indicate anyone stands outside the grapple truck to assist with brush pickup.)

¶ 24 The leaf-pickup program runs for six weeks, and City employees and contractors pick up leaves that residents put in the street. Each house is picked up three times in the six weeks. Some of the pickup crews employ “rakers,” who walk along the curb and remove rocks and sticks from the leaf piles before they are picked up by machinery. Some crews also use front-end loaders, which push leaves away from the curb to be picked up by other machinery. Since 2018 or 2019, however, leaf piles on Villanova Drive have been picked up by a contractor who uses a leaf vacuum unit, which does not require rakers and does not involve anyone walking the street.

¶ 25 2. Sharon Trips and Falls on the Sidewalk in Front of the Bishels’ Home

¶ 26 The Bishels purchased their home in May 2019. Susan primarily mowed the lawn and also shoveled snow off the sidewalk. Susan acknowledged the defect at issue. However, she could not recall the first time she noticed it....